CONSTITUTIONAL LAW I OUTLINE Fall 2009 Prof.

Knipprath
I.

THE JUDICIAL POWER The Const authorizes a federal court system in Article III which provides that federal courts shall have judicial power over all cases and controversies: 1. arising under the Const, laws, or treaties of the US; 2. of admiralty and maritime jurisdiction; 3. in which the US is a party; 4. btw 2+ states; 5. btw a state and citizens of another state; 6. btw citizens of different states 7. btw citizens of the same state claiming lands under grants of different states; 8. btw a state and citizens thereof and foreign states, citizens, or subjects. JUSTICIABILITY DOCTRINES-prereqs to the exercise of fed judicial power

II.

a series of judicially created doctrines that limit the types of matters that fed courts can decide 5 Major Justiciability Doctrines: all must be met for any fed court to hear a case 1. Advisory Opinions 2. Standing 3. Ripeness 4. Mootness 5. Political Question All doctrines raise basic policy questions about proper role of fed judiciary in democratic society all doctrines intended to improve judicial decision-making by providing fed courts with concrete controversies best suited for judicial resolution *** limit availability of fed court review conserving judicial resources

A. Advisory Opinions

federal courts cannot issue advisory opinions Black letter law: federal courts will not render decisions in moot cases, collusive suits, or cases involving challenges to governmental legislation or policy whose enforcement is neither actual nor threatened. (Collusive = secretly cooperating or involving secret cooperation in order to do something illegal or underhanded) How not be an advisory opinion o must be an actual dispute btw adverse litigants o must be substantial likelihood that a fed court decision in favor of a claimant will bring about some change or have some effect policies served by the prohibition of advisory opinions: o separation of powers is maintained by keeping the courts of the legislative process o waste of political and financial capital o ensure that cases will be presented to the court are not hypothetical legal questions

B. Standing Black letter law: The SC will not decide a const-al challenge to a govt action unless the person who is challenging the govt action is able to demonstrate a concrete stake in the outcome of the controversy.

1. Three const-al requirements a) Injury P must allege that he/she has suffered or imminently will suffer the injury b) Causation P must allege that the injury is fairly traceable to Ds conduct c) Redressability P must allege that a favorable fed court decision is likely to redress the injury 2. Three prudential requirements a) Prohibition of third-party standing: a party may assert only his/her own rights and cannot raise the claims of 3rd parties not bfr the court, except when: close relationship exists btw litigant and 3rd party so that litigant is as fully effective a proponent of the right as the 3rd party obstacle to the 3rd party against defending his/her rights in court b) prohibition of generalized grievances individuals may not sue if their only injury is as a citizen or a taxpayer concerned w/having the govt follow the law c) P must be w/in the zone of interests protected by statute P may sue if it can show that it is w/in the group intended to benefit from the statute Constitutional Requirements a. Injury to have standing, a person must be able to assert that she is injured by a govt action or that the govt has made a clear threat to cause injury to her if she fails to comply w/a govt law, regulation, or order. o specific injury must be alleged and it must be more than the merely theoretical injury that all persons suffer by seeing their govt engage in unconstitutional actions. o injuries to common law rights property, Ks, torts sufficient for standing purposes o injuries to Const-al rights person who claims discrimination or violation of individual liberty such as freedom of speech or due process of law will have standing o injuries to statutory rights violations of rights created by statute o Injury need not be economic: in some cases, SC has found that an individual is harmed bcs the alleged illegal act or unconstitutional action has an impact on the persons well-being.
b. Causation there must be a causal connection btw the injury and the conduct

complained of. o injury must be traceable to the challenged conduct of D and not be attributable to some independent 3rd party not bfr the court. o Ex Warth v. Seldin: Ps claiming that a municipalitys zoning policies prevented low income persons from finding housing in the municipality were denied standings bcs they failed to show a substantial probability that they would be able to afford housing in the municipality even absent the zoning policies. c. Redressability whether a ruling favorable to litigant would eliminate the harm to him. o Ex: SC held that mothers dont have standing to challenge govts refusal to enforce criminal laws that would require fathers of their children to pay child support. The enforcement of the criminal laws against a father who is guilty of

nonsupport would not necessarily result in the fathers providing support to the mother and her children. Prudential Requirements a. Prohibition against third-party standing P can assert only injuries that he/she has suffered; P cannot present the claims of 3rd parties who are not part of the lawsuit. o two exceptions 1. close relationship btw P and 3rd party 3rd party standing permitted where the individual seeking standing is part of the 3rd partys const-ally protected activity. Ex: a parochial school was accorded standing to challenge Oregon law requiring all children to attend public school bcs of the close relationship btw the school and the parents and bcs the school was part of the regulated activity of providing parochial education. Ex: a vendor of beer was granted standing to assert the const-al rights of males under 21 attacking a state law prohibiting sale of beer to them but not to females under 21. limitation family law issues 2. where 3rd party is unlikely to be able to sue Ex: NAACP was permitted to assert the freedom of association rights of its members in attacking a state law requiring disclosure of membership lists bcs its members could not file suit w/out disclosing their identities. The following two cases were NOT covered in class, but are great cases to understand 3rd-party standing Singleton v. Wulff (1976) ARGUMENT FOR CITIZEN o Doctors sued on behalf of women patients to have their non-medical abortions paid for by Medicaid. o Issue: can doc raise 3rd party claim? OR does article 3 suggest you can only raise your own injury? o Held: Doctors had standing bcs they suffered an injury in fact (they were not getting paid for the abortions they performed on welfare recipients under the statute) and were the proper proponents of the legal rights on which they based their suit (pt/dr close relationship and women could not assert their own rights due to privacy and mootness). Special relationship in this context Woman cant exercise her right w out doc cooperation (prescribing drug, performing procedure) special confidential relationship Woman is not best to raise her own con claims bcs pregnancy = 9 months By time you know youre pregnant 3 months Dont really have time to go through entire trial proceedings before child is born Problem of womans claim becomes moot after 9 months Her interests dont survive Doc interest survives o Court holds that where there is a special relationship and difficulty of woman to bring claim special exception which will allow certain s to have a 3rd party to bring their claim o Difference btw Allen and Wright No clear injury (only theoretical)

Minority parents were only adversely affected by IRS policy In this case docs income was affected by govt failure to aid o Analysis of standing: 1) Do docs allege an injury in fact Docs allege injury in fact bcs they performed work for which state Medicaid official declined to pay them 2) Are docs proper parties to bring this suit Bcs of circumstances docs are proper advocates for a challenge to Missouri statute denying Medicaid benefits for a class of abortions o Analysis of exception to prohibition of 3rd party standing 1) The relationship btw parties is such that person suing may advocate effectively for the right Relationship btw docs and patients sufficiently close to make docs effective proponents of challenge of statute EX: An indigent woman who might seek an abortion cant safely exercise her right to an abortion w out access to her doc and Medicaid assistance to pay for that access o Bcs she needs doc for prescriptions, performing procedure etc 2) There are genuine obstacles to the 3rd party asserting the right in court Genuine obstacles exist to woman bringing case herself EX: Woman might be scared off from lawsuit bcs it would compromise her privacy Rights concerning pregnancy and abortion fit into capable of repetition yet evading review since case becomes moot once pregnancy has advanced beyond point where abortion is safe or practical o Womans interest doesnt survive once baby is born o Issue is not moot bcs shes capable of being pregnant again o EX: Dumping of something by co to a river s were people who went to river Bcs of dumping couldnt participate in such activities Applied broader standing Co shut itself down voluntarily bcs its moot Question: Co shutting down makes issue moot? Court this wasnt moot bcs it was capable of repetition Elk Grove Unified School Dist. v. Newdow (2004) ARGUMENT FOR GOVERNMENT o Dad, an atheist, sued on his daughters behalf bcs the school required every student to pledge allegiance, which included under God. By custody agreement arranged under state law, dad did not have the final say-so in his daughters education but the mother did. o Held: Dad lacked prudential standing bcs under state law he could not bring suit as next of friend on behalf of his daughter. New prudential standing principle it is improper for fed courts to hear Ps claim whose standing is based on family law rights that are in dispute when prosecution

of the lawsuit may have an adverse effect on the person who is the source of the s claimed standing. o Substantive Issue: Whether participation requiring the pledge of allegiance is a religious action? o Issue in this case: Does xx have standing to bring this case before the court? Does xx have a special relationship w child to be able to raise the claim? o Against standing Bcs wife is primary decision maker via family law he has no standing Dad has rights but moms rights are stronger as primary decision maker Under CA law although court granted court custody if theres a conflict btw mom and dad bcs of her custody role mothers choice is to prevail Court treats this as taking dads con rights is this correct? o Court ruled father didnt have standing o What if daughter submitted affidavit showing similar interest to dads should this have any weight? Court suggests that dad would have standing if parents had joint custody o Court ducks on pledge of allegiance issue bcs if court reaches this issue going to have to get majority to get rid of current precedents Court doesnt want to get rid of the symbolism of allegiance Probably politics that drove this decision b. Prohibition of Generalized Grievances Prevents standing when asserted harm is a generalized grievance shared in a substantially equal measure by all or a large class of citizens. Existence of a generalized grievance is not determined simply by the number of people affect; rather, it is where the Ps sue solely as citizens concerned w/having govt follow the law or as taxpayers interested in restraining allegedly illegal govt expenditures. c. P must be w/in the zone of interests protected by the statute If a P is suing pursuant to a statutory provision, in order to have standing, P must be part of the group intended to benefit from the law. The zone of interests requirement is used only in statutory cases, usually, involving administrative law issues. Ex: if there is a statute preventing widget companies from regulation preventing widget companies from selling law books, a law book company might sue to challenge an administrative regulation permitting the widget company to sell law texts. Although the law book company is not directly controlled by the regulation, it may sue if it shows that it fulfills the const-al standing requirements and that the statute limiting the widget company sales intended to protect its interests. Associational Standing o Black letter law: an association has standing to bring suit on behalf of its members when:

1. its members would otherwise have standing to sue in their own right (at least one member has first-party standing) 2. interests it seeks to protect are relevant to organizations purpose 3. neither the claim asserted nor the relief requested requires the participation in the lawsuit of the individual members Taxpayer Standing o In general, people do not have standing as taxpayers to challenge the way tax dollars are spent by the state or federal govt bcs their interest is too remote. o Exception - a federal taxpayer has standing to challenge federal appropriation and spending measures if she can establish that the challenged measure: i. was enacted under Congresss taxing and spending power; and ii. exceeds some specific limitation on the power *** Establishment clause *** no standing to challenge a federal govt transfer of surplus property under the Property Clause that allegedly violated the Establishment Clause; neither was there standing to challenge expenditures of the executive branch general funds that allegedly violated the Establishment Clause. 11th Amendment limits on federal courts o 11th Am will prohibit a federal court from hearing a claim for damages against a state govt (although not against state officers) unless: 1. the state has consented to allow the lawsuit in federal court 2. P is US or another state; or 3. Congress has clearly granted federal courts the authority to hear a specific type of damage action under the 14th Am. See section on Sovereign Immunity for details. C. Ripeness Black letter law: Ripeness asks whether the controversy has developed to a point that it is a controversy or dispute on which the court may grant relief. It involves the question of when a party may seek pre-enforcement review of a statute of regulation P is generally not entitled to review of a state law bfr it is enforced; thus, a federal court will not hear a case unless P has been harmed or there is an immediate threat of harm Policy considerations: o advancement of separation of powers by avoiding judicial review in situations where it is unnecessary for fed courts to become involved bcs there is not a substantial hardship to postponing review o enhancement of judicial economy by limiting the occasion for federal court jurisdiction and the expenditure of judicial time and revenues Two part test 1. Hardship to denying review the more P can demonstrate substantial hardship to a denial of pre-enforcement review, the more likely a federal court is to find ripeness. there are three situations in which the Court has found there to be enough hardship to justify pre-enforcement review. a) When an individual is faced w/a choice btw forgoing allegedly lawful behavior an risking likely prosecution w/substantial consequences, fed courts will deem the case ripe rather than insist that the individual violate the law + risk the consequences. b) Where enforcement of a statute or regulation is certain and the only impediment to ripeness is simply a delay bfr the proceedings commence, the Court will find the matter ripe bfr the actual proceedings occur.

c) collateral injuries that are not the primary focus of the lawsuit 2. fitness of the issues and record for judicial review the more a question is purely a legal issue the analysis of which does not depend on a particular factual context, the more likely it is that the court will find ripeness. A case is not ripe until all administrative remedies are exhausted. Ex: in cases claiming a govt taking of property w/out just compensation, Court held that the matter is not ripe until compensation has been sought and denied thru available administrative procedures. D. Mootness Black letter law: a fed court will not hear a case that has become moot: a real, live controversy must exist at all stages of review, not merely when the complaint is filed. De Funis v. Odegaard a white law students challenge to states affirmative action program was dismissed as moot, since the student, although originally passed over for minority applicants w/allegedly poorer records, had been admitted to law school while litigation was pending, was about to graduate by the time the case reached SC, and would receive the same law degree whether or not the affirmative action program was invalidated. Exceptions a) Capable of repetition but evading review o Rule: there is a reasonable expectation that the same complaining party will be subjected to the same action again and would again be unable to resolve the issue bcs of the short duration of the action o Ex: issues concerning events of short duration, such as pregnancy, elections, divorce actions, etc. b) Voluntary cessation o Rule: Defendant voluntarily stops the allegedly improper behavior but is free to return to it at any time. o Only if there is no reasonable chance that D could resume the offending behavior is a case deemed moot on basis of voluntary cessation. c) Collateral consequences o Rule: If a secondary or collateral injury survives after Ps primary injury has been resolved, then the case is not moot bcs some injury remains that could be redressed by a favorable fed court decision. o Ex: a challenge to a criminal conviction is not moot, even after D has completed the sentence and is released from custody, when D continues to face adverse consequences of criminal conviction. o Ex: in civil litigation, a case is not moot even if Ps primary injury is resolved, so long as P continues to suffer some harm that a favorable court decision would remedy. d) Class actions o Rule: a class representative may continue to pursue a class action although the representatives controversy has become moot, as long as the claims of others in the class are still viable. E. The Political Question Doctrine The court will not decide political questions. Question is whether the subject matter of an action is such that the courts are competent as judicial institutions to decide the case. Political questions are: those issues committed by the Constitution to another branch of govt those inherently incapable of resolution and enforcement by the judicial process

Examples of political questions include: 1. Questions regarding the conduct of foreign relations; or issues as to when hostilities have stopped 2. Questions relating to which group of delegates should be seated at the Democratic National Convention 3. The procedures used by the Senate to try impeachments. Thus, the court refused to rule on the constitutionality of the Senates delegation of the duty to take evidence and testimony to a committee of senators prior to the Senate deciding whether to vote for conviction on an impeachment of a federal judge. 4. What constitutes a republican form of government guaranteed to the state by Article IV, Section 4. 5. Whether the number of votes a candidate for Congress received is sufficient to elect him and whether the candidate meets the age and residency requirements for office. Nonpolitical controversies include: Legislative Apportionment: considered to be political until Baker v. Carr. Oneperson-one-vote suggests that the legislative apportionment is no longer considered to be political. Presidential Papers and Communications: considered to be privileged and protected against disclosure in the exercise of the executive power. But where these documents are necessary to the continuation of criminal proceedings, the question of production is justiciable and not political. Origination Clause Cases: this clause provides that bills for raising revenue must originate in the House of Representatives. Factors that trigger a political question and thus a non-justiciable issue: 1. A textually demonstrable constitutional commitment of the issue to a coordinate political department o Is there a political branch that the constitution assigns the decision to? For example, you cant sue the president over appointments he makes bcs it is his authority to make them. You cant sue the Senate over a treaty bcs this is within their sole discretion to do so. 2. A lack of judicially discoverable and manageable standards to resolve it o The court needs a standard to resolve the issue. Baker v. Carr: SC determined that this issue could be resolved under the Equal Protection Clause of the 14th Amendment. This clause states that everyone has to be treated equally. 3. Impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion o Example: Cessation of hostilities during war is a policy determination for the executive 4. Impossibility of a resolution without a lack of respect to the governmental branch o At what point do you cross the line in disrespecting president? 5. An unusual need for unquestioning adherence to a political decision already made o Treaty agreement/ war termination/ war commencement 6. The potential embarrassment from multifarious pronouncements by various departments on one question

o If none of these circumstances is present case shouldnt be dismissed on ground that its a political question. III. SUPREME COURTS AUTHORITY AND JUDICIAL REVIEW 1. Power of Judicial Review Marbury v. Madison: establishes the authority for judicial review of both federal and executive + legislative acts to determine constitutionality Const is LAW and its the duty of the judiciary to declare what the law is. Statute or law that is inconsistent w/Const is void. Separation of Powers and Finality of Court Decisions - Separation of powers doctrine prohibits the legislature from interfering w/courts final judgments. - Plaut v. Spendthrift Farm, Inc.: SC inferred a limitations period under an ambiguous federal securities law. Bcs new SC rulings generally apply to all pending cases, the limitations period imposed by the Court resulted in the dismissal of many pending cases as time-barred. Congress amended the securities law to provide (i) different limitations period and (ii) special moti on for reinstating cases dismissed as time-barred by SCs ruling. SC held that the this statute violated the separation of powers doctrine under the Const.Jurisdiction of the Supreme Court 1) Original Jurisdiction o Article III, Section 2: SC has original jurisdiction in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party. o Self-executing provision: Congress may neither restrict nor enlarge SCs original jurisdiction. o Congress may give concurrent jurisdiction to lower federal courts and has done so regarding all cases except those btw states. 2) Appellate Jurisdiction Article III, Section 2 (contd): in all other cases, SC shall have appellate jurisdiction, both as to law and fat, w/such exceptions and under such regulations as the Congress shall make. Congress provided two methods for invoking SC appellate jurisdiction: 1) Writ of Certiorari (Discretionary) SC has complete discretion to hear cases that come it by writ of certiorari. case will be heard if 4 justices agree to hear it the following cases may be heard by certiorari: o Cases from the highest state courts where (i) the constitutionality of a federal statute, federal treaty, or state statute is called into question; or (ii) a state statute allegedly violates federal law. o All cases from federal courts of appeals. 2) Appeal (Mandatory) SC must hear those few cases that come to it by appeal. Appeal is available only as to decisions made by 3-judge panels that grant or deny injunctive relief. (Injunctive relief is a form of equitable remedy in the form of a court order whereby a party is required to do or refrain from doing certain acts.)

 Ex Parte McCardle gives Congress full power to regulate and limit SCs appellate jurisdiction. However, there are possible limitations on such congressional power Congress may eliminate certain avenues for SC review as long as it does not eliminate all avenues. Ex: In McCardle, 2 statutes had allowed SC to grant habeas corpus to federal prisoners. SC upheld the constitutionality of the repeal of one of the statutes bcs the other statute remained as an avenue for SC habeas corpus review. Although Congress may eliminate SC review of certain case w/in the federal judicial power, it must permit jurisdiction to remain in some lower federal court. If Congress were to deny all SC review of an alleged violation of constal rights or deny a hearing bfr any federal judge on such a claim this would violate due process of law. Congress cannot undo the finality of the courts decision Congress cannot deprive the federal courts or the SC the power to decide the constitutionality of acts performed by co-equal branches.

IV. SEPARATION OF POWERS; CHECKS AND BALANCES, AND THE COURT A. The EXECUTIVE POWER a. Article II, Section 1: the entire executive power is vested in the President. b. Executive Privilege i. Not expressly stated in the Const; rather, an inherent privilege necessary to protect the confidentiality of presidential communications. ii. Definition of privilege: Ability of the President to keep secret conversations with or memoranda to or from advisors. iii. Extent of the Privilege 1. The privilege is not absolute. 2. Presidential documents and conversations are presumptively privileged, but the privilege must yield to the neued for such materials as evidence in a criminal case to which they are relevant and otherwise admissible. 3. This determination is made by the trial judge after hearing the evidence. a. National security secrets military, diplomatic, or sensitive national security secrets are given great deference by the courts. b. Criminal proceedings presidential communiqus will be available to prosecution, where a need for such info is demonstrated. c. Civil trials the need for info in a criminal case is weightier and Executives w/holding of info in a civil trial would not impair judiciarys ability to fulfill its responsibility to resolve cases as much as in a criminal trial. Thus, executive branch decision to w/hold info will be given more deference in a civil trial than in a criminal trial. d. Screening papers and recordings of former president federal statute requiring Administrator of General Services to screen presidential papers is valid, notw/standing the privilege. e. Screening by judge in chambers the court will determine in an incamera inspection which communications are protected and which are

subject to disclosure, unless the info is deemed a state secret, in which case cannot run the risk of disclosing it to the court. c. Executive Immunity i. Civil Cases 1. Absolute immunity the President has absolute immunity from civil damages based on any action that the President took w/in his official responsibilities. a. President may not be sued either for injunctions or for money damages for conduct while in office. b. Rationale frequent suits against the President would detract from his ability to perform effectively. c. Former president also is entitled to absolute immunity from damages liability predicated on his official acts. 2. No immunity before taking office President has no immunity from private suits in federal courts based on conduct that allegedly occurred bfr taking office. ii. Other executive officials 1. Only a few executive officials are accorded absolute immunity; like prosecutors or those officials who are exercising discretionary authority for the President in sensitive areas of national concern, such as foreign affairs. 2. The norm is that executive officials are only entitled to qualified immunity (good faith defense) a. Test is objective: Govt officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional right of which a reasonable person would know. b. Ex: Attorney General doesnt share the Presidents absolute immunity for authorizing a warrantless wiretap on national security grounds. Attorney General would have a defense to a lawsuit regarding such a wiretap if it was shown that he was able to act in good faith bcs his actions were not violating clearly established or well-settled statutory or constitutional rights. d. Appointment and Removal Powers i. Appointment Power 1. 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 otherwise provided for . . . Senate approval requires a simple majority (not super-majority 2/3) 2. Who are Officers of the United States a. No explicitly stated/defined in the Constitution. b. Attorney general, secretary of the state, secretary of defense, FBI agents, judges could be people in the executive, judiciary branches or heads of some independent commission/agencies that have quasijudicial authority. c. Senators are not officers. 3. Inferior Officers a. Congress may, by law, vest the appointment of such inferior officers, as they think proper in the president alone, the judiciary, or the heads of departments. b. Who is an inferior officer? we look at factors:

i. Amount of discretion the officer has ii. Limited duties iii. Appointed for a limited tenure and can be removed by the head of the department or agency 4. No Appointments by Congress a. Congress may appoint its own officers to carry on internal legislative tasks (its staff). b. Congress may not ever appoint members of a body w/administrative or enforcement powers. ii. Removal Power 1. As to removal of appointees, the Const is silent except for ensuring tenure of all Article III judges during good behavior. 2. General rule the president has the power to remove executive officials, but Congress may limit the removal power if it is an office where independence from the president would be desirable. Congress cannot, however, prohibit all removal, and it cannot give the removal power to itself (other than by exercising its impeachment power). 3. Removal by President a. President has the greatest interest in exercising maximum discretion and control over the executive branch officers; therefore, Congress cannot limit Presidents power to fire an officer w/in the executive branch. 4. By Congress a. Congress cannot give itself the sole power to remove an executive official. b. Congress cannot completely prohibit presidential removal, but it can limit removal to where there is good cause. c. President has the least interest in controlling what the judiciary officers do; therefore, he does not have the Constitutional power to fire and Congress cannot collaborate w/Pr and vest him that power. The only way judges may be removed is thru impeachment. (Separation of power, independent co-equal branch). e. Pardoning Power i. Article II, Section 2 grants the President the power to grant reprieves and pardon for offenses against the United States, except in cases of impeachment. ii. The pardon power cannot be limited by Congress iii. Three major questions addressed: 1. For what offenses? a. Every offense known to the law b. Power may be exercised at any time after its commission, either bfr legal proceedings are taken, or during their pendency, or after conviction and judgment. c. Does not apply to civil liability: president could issue a pardon as to criminal contempt of court, but not as to civil contempt. 2. What form? a. President has very broad discretion. b. Excuse individual for the criminal acts in the eye of the law, the offender is as innocent as if he had never committed the offense. c. Reducing the sentence, but not excusing the crime d. President may grant amnesty to an entire group. 3. What conditions?

a. President may commute a death sentence on the condition that the person never would be eligible for parole. b. President may only reduce a persons sentence. Pr cannot award any other compensation to an individual as part of the conditions attached to a pardon. f. Impeachment i. Article II, Section 4 provides that the President, Vice President, and all civil officers of the US shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. ii. What are high crimes or misdemeanors? 1. no legal definition of what constitutes a high crime or misdemeanor the answer in Congress is always likely to be political (considering the three impeachment cases in history impeachment of Andrew Johnson, committeeimpeachment of Nixon, and impeachment of Clinton). iii. Impeachment by the House 1. A majority vote in the House is necessary to invoke the charges of impeachment, iv. Conviction by the Senate 1. A two-thirds present in the Senate (supermajority) is necessary to convicted. 2. No president, although impeached, has been convicted and removed from office yet. g. Presidents Power and Congressional Limitations i. Domestic Policy 1. Youngstown Sheet & Tube Co. v. Sawyer a. Addressed the scope of inherent presidential power b. Facts: In early 1952, the United Steelworkers Union announced a bfr to being, President Harry Truman issued Executive Order 10340 which directed the secretary of commerce to take possession of the steel mills and to keep them running. Pr believed that steel strike could endanger national defense and the war effort in Korea bcs steel was indispensable for all weapons. Pr reported the action to Congress but Congress took no action in response to the seizure. c. Holding: 6-3 margin declared seizure of the steel mills unconstitutional d. Four approaches identified in the opinions when the president may act w/out the express constitutional or statutory authority i. No inherent presidential power 1. There is no inherent presidential power; the president may act only if there is express constitutional or statutory authority 2. Justice Blacks majority opinion 3. This approach is premised on the belief that inherent authority is inconsistent w/a written Const establishing a govt of limited powers. ii. Interstitial Executive Power 1. Pr has inherent authority unless the president interferes w/the functioning of another branch of govt or usurps the powers of another branch 2. Justice Douglas concurring opinion

3. This approach is premised on the belief that there is a need for Pr to exercise powers not specifically enumerated in the Const or not expressly granted by Congress. 4. Ex: Const makes no mention of a presidential power to recognize foreign govts or to remove presidential appointees from office, nor has Congress ever granted such powers in a statute; yet, it is conceded that the Pr has these powers. iii. Legislative Accountability 1. The Pr may exercise powers not mentioned in the Const so long as the Pr does not violate a statute or the Const. 2. Justice Frankfurters concurring opinion 3. Justice Jacksons concurring opinion creating 3 zones of presidential authority a. Zone 1: Pr acts according to an express or implied authorization of Congress no issues since Pr possesses all that is included in his own right plus all that Congress can delegate b. Zone 2: Pr acts in absence of either a congressional grant or denial of authority, by relying only upon his own independent powers i. This is where most of the problems will arise. President's exercising power becomes the most difficult to sustain. c. Zone 3: Pr takes measures incompatible w/expressed or implied will of Congress means there is no Congressional authority iv. Broad Inherent Authority 1. Pr has inherent powers, at least in some areas, which may not be restricted by Congress and may act unless the Const is violated. 2. Chief Justice Vinsons dissenting opinion 3. Strongly supported in US. V. Curtis-Wright Factor analysis for Jacksons Three Zones If you are the judge and have to decide whether the Pr. has a specific power and there is some Congressional legislation that is not clear whether the action belongs to 1, 2, or 3rd category, how would you resolve and decide whether the Pr. has such a power? used the following factors 1. Look at the text to determine the source/nature of the president's power - this analysis is more likely to come up when the power is not expressly enumerated. 2. History of the claimed President's power - that could involve what framers had to say about what the practice had been at the time and the term inquiry through the history of American practice - determine how it has been handled in practice, did we recognize such a power to act based on an ambiguous power granted to Pr. by the Const. 3. Subject of the dispute domestic v. foreign affairs/national security In domestic sphere, Prs role as chief executive is much more limited by Congress than in matters of foreign affairs where the Pr enjoys bipartisanship and Congressional approval. Congress is more hesitant/diligent to delegate powers to Pr in

domestic affairs bcs it would make Pr more dominant; whereas in foreign relations, Pr has much more powers and the Congress can grant him even broader powers 4. The Source of Congressional Power usually not a problem as Congress is able to point to some express power Ex: power to regulate army and navy, interstate commerce, etc. 5. How expressly did Congress act? silence is usually interpreted as assent, not opposition under the law If Congress does absolutely nothing, then factors 4 and 5 are not applicable, but the first three must be considered. If the fact pattern triggered Jacksons third category analysis, then all five factors must be discussed as there is some Congressional action which is disapproval of what the Pr is doing. This analysis applies only where the Pr has acted in a way thats not expressly authorized by the Const. The stronger and longer adhered the practice is, the stronger the Prs claim that this is a power that has been historically his. The stronger it is, the more dubious the Congress' claim is. ii. Foreign Affairs 1. Does Pr inherently have greater powers in the area of foreign policy compared w/domestic affairs? a. US v. Curtiss-Wright: Congress adopted a law that empowered Pr. To ban weapons sales to warring countries, and the Pr issued an executive order. Curtiss-Wright was charged w/conspiring to sell arms to Bolivia, a country engaged in the Chaco conflict. i. Held: Pr. Had the power to issue the executive order bcs Pr has broad inherent powers over foreign affairs, as compared to domestic affairs. 2. Treaties and Executive Agreements a. Article II, Section 2 states that Pr shall have power, by and w/the advice and consent of Senate, to make treaties, provided 2/3 of the senators present concur. b. Executive Agreements i. Executive Agreement is an agreement btw US and a foreign country that is effective when signed by Pr and the head of the other govt. No Senate approval is necessary. ii. General rule: so long as Pr is not violating another constitutional provision or a federal statute, there seems little basis for challenging the constitutionality of an executive agreement. iii. Dames & Moore v. Regan (Secretary of Treasury, not Pr) 1. Shortly bfr leaving office in 1981, Pr. Carter negotiated an agreement w/Iran whereby Iran would free American hostages being held in Tehran in exchange for US lifting a freeze on Iranian assets in US. Dames and Moore filed suit against US seeking an injunction from enforcement of the agreement bcs they alleged the Iranian owed them $3.5 million for breach of K. 2. Held: Bc the Presidents power is at maximum, the executive agreement was valid. The President was acting

w/in Congressional authority and inherent power. A longstanding history of using such executive settlement of claims never challenged by Congress is a gloss on Executive power, i.e. an inherent power. a. Difference btw this case and Youngstown (steel strike case) D & M deals w/foreign affairs dispute. iv. Conflicts w/other governmental action 1. Executive agreements are not consented to by the Senate, so they are not the supreme law of the land. Thus, conflicting federal statutes and treaties will prevails over an executive agreement, regardless of which was adopted first. However, executive agreements prevail over conflicting state laws. c. Treaties i. Treaty is an agreement btw the US and a foreign country that is negotiated by Pr and is effective when ratified by the Senate. ii. Supreme law: like other federal law, treaties are the supreme law of the land; so any state action or law in conflict w/ a US treaty is invalid. iii. Self-executing v. Non-self-executing treaties 1. Self-executing effective w/out implementation by Congress 2. Non-self-executing not effective unless and until Congress passes legislation to effectuate their ends iv. Conflict w/Congressional Acts 1. If there is a conflict btw a treaty and a federal statute, the one adopted last in time controls. iii. War Powers 1. Rule: Although lacking the power to declare or initiate a formal war, the president has extensive military powers. The President may act militarily under his power as commander in chief of the armed forces and militia under Article II 2, in actual hostilities against the U.S. without a congressional declaration of war. But Congress may limit the president under its power to enact a military appropriation every two years. 2. War Powers Resolution a. Requires that the Pr consult w/Congress, where possible, bfr introducing troops into hostilities and that Pr report to Congress w/in 48hrs after troops are introduced into hostilities or in situations which risk imminent involvement in hostilities. b. Also requires Pr to w/draw troops w/in 60 days, unless Congress extends that period. c. It also allows Congress to jointly pull any troops out of any hostile zone AT ANY TIME, even before the 60 days. d. Three situations in which Pr could introduce US force into hostility i. A declaration of war ii. Specific statutory authorization, or iii. National emergency created by attack upon the US, its territories or possessions, or its armed forces. 3. Presidents power

a. Article 2, section 2: Pr shall be commander-in-chief of the Army and Navy of the U.S. b. Prize Cases: The court held that Pr had the power to impose a blockade on Southern states w/out a congressional declaration of war. 4. Challenges are likely to be dismissed as political questions a. SC has often remarked that challenges to the conduct of foreign policy present a non-justiciable political question. 5. Hint: Although the constitution expresses a sharing of the war powers, the executive branch dominates this power, in reality. War is seldom formally declared; deployment and use by the executive of US armed forces in foreign lands is not unusual. Examples include Korea, Vietnam, Panama, Granada, the Persian Gulf War, Haiti, etc. ii. Presidential Power and the War on Terrorism 1. When may the President detain American enemy combatants, and when, if at all are military tribunals constitutional? a. Hamdi v. Rumsfeld (2004) i. After September 11, 2001, Congress authorized the President to use all necessary and appropriate force against those who aided in the terrorist attacks (AUMF). Hamdi, an American citizen, was captured in Afghanistan in connection with the Taliban forces, and he was transferred to a military brig in the US. The Government alleges that Hamdi is an enemy combatant and can be detained indefinitely without formal charges or proceedings. ii. Held: Although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. b. What issues did the court resolve? i. Does the executive have the power to detain citizens who qualify as enemy combatants? 1. YES Congress authorized the President under AUMF to detain individuals in the narrow category of the courts definition of enemy combatants. The scope of Congress authorization is to those individuals legitimately determined to be Taliban combatants who engaged in an armed conflict against the United States and during the duration of the conflict. ii. What process is due to a citizen who disputes his enemycombat status? 1. Notice of the factual basis for his classification and a fair opportunity to rebut the Governments factual assertions before a neutral decision maker. However, the process for enemy-combatant proceedings may be tailored to alleviate the burden on the Executive at a time of ongoing military conflict. 2. 1) Habeas corps: The writ of habeas corpus remains available to every individual detained within the US (so this excludes Guantanamo Bay). Court rejects Govs argument that the habeas determination can be made as a

matter of law, without further process, bc Hamdis seizure was undisputed. Here, it is unclear whether Hamdis seizure was within the scope of Congress bc was he engaged in an armed conflicet or seized by the US when residing in Afghanistan? Thus, the court finds further process is due. 3. 2) Due Process & Mathews v. Eldridge Factors: Court finds that Hamids interest is to be free from physical detention, and an unchecked method of detention has the potential to become a means for oppression and abuse. The Govs interest is to prevent an enemy to return to battle against the US and to prevent an onerous burden on military officers that, if required to conduct full trials, wocfuld be split b/n waging battle and holding trials.

c. Hamdan v. Rumsfeld (2006) i. The President created a military tribunal by an Executive Order. Hamdan, the driver for Osama Bin Laden, was captured in Afghanistan and was detained at Guantanamo Bay, Cuba. Hamdan brought a habeas corpus petition arguing that the military tribunal violated his rights under due process and international law. After the SC granted cert, Congress enacted the Detainee Treatment Act, which said that those in Guantanamo did not have access to habeas corpus and could gain review only in the DC circuit. ii. Held: The military tribunals created by executive order violated the Geneva Accords and the Uniform Code of Military Justice. h. Legislative Delegation i. Congress can delegate its power to administrative agency, subject to the Delegation of Powers Test: 2. Congress must have the power to delegate a. Cannot delegate smtg that it does not have 3. There has to be some limitation on the delegates discretion. a. If given away w/out any kind of constraint, it violates the delegation power b. Put clear identified objective for agency to pursue i. Ex: Congress allows an agency to make whatever rules necessary to stabilize the prices in the yogurt industry over the next 6 months to prevent wide fluctuations c. Need to set up standards by which to measure the agents action 4. The delegation must not violate some other Constitutional provision ii. The courts have not gotten into the business of limiting delegations by Congress so long as Congress has done the minimum to comply with the test. i. Congressional (Legislative) Veto i. Legislative Veto defined 1. Congress includes in statutes provisions authorizing Congress to invalidate an agencys action by a resolution, passed by one house, that is not presented to the Pr for a possible veto. ii. INS v. Chadha

1. Facts: Chadha was an East Indian who had been born in Kenya and had a British passport. After his visa expired, Chadha was ordered to show cause as to why he should be allowed to remain in US. An immigration judge ruled in favor of Chadha and ordered that his deportation be stayed. However, the House adopted a resolution overturning this decision and thereby ordering Chadhas deportation. Federal law gave either house of Congress the authority to overturn an INS decision to suspend deportation. 2. Holding a. Majority: The legislative veto is unconstitutional bcs the constitution requires Congress legislate only if there is bicameralism (passage by both the House and Senate) and presentment (giving it to the President to sign or veto), which is required by Art.I, 7. i. Question is whether the resolution had legislative effect, meaning the rights and obligations of individuals were changed, in which case it has to go thru bicameralism and presentment. ii. Majority says yes bcs it changed the rights and obligations of the attorney general and Mr. Chadha who was allowed to stay bfr, but after the passage of resolution, had to be deported. iii. The test is whether the resolution/bill has legislative effect which would require bicameralism and presentment. The legislative effect is present if the rights and obligations of the individuals are changed by the resolution/bill. b. Concurrence: looks at the difference btw judicial and legislative act. Legislative acts, according to concurring opinion, are forward looking and tend to apply broadly and generally in a kind of indiscriminate fashion, whereas judicial acts resolve conflicts that have already occurred btw 2 identified persons. What the Congress was doing in this case was to act as an appellate court, trying to resolve a conflict that occurred btw 2 identified persons the attorney general and Chadha. This is unconstitutional as it raises a separation of powers issue. c. Dissent: there was already participation by the House and the Senate, as well as the Pr, when the law was written that allowed the immigration procedure. Since it was too open ended, Congress could override it whenever it wanted and for however long it wanted. j. Veto Power i. Congress may override veto by 2/3 vote 1. Every act of Congress must be approved by Pr bfr taking effect, unless passed over his disapproval by 2/3 vote of each house. 2. President has 10 days to veto, excepting Sundays. If he fails to act w/in that time: a. The bill becomes law if Congress is still in session; or b. The bill is automatically vetoed if Congress is not in session (pocket veto) i. Brief recess during an annual session creates no pocket veto opportunity. ii. Line Item Veto Unconstitutional 1. Clinton v. New York a. Line Item Veto Act allowed Pr to veto certain parts of appropriation bills while allowing the rest to go into effect. b. Held: this statutory increase in presidential power is unconstitutional. The veto power allows the Pr only to approve or reject a bill in its entirety; he cannot cancel part, thru a line-item veto, and approve other

parts. Rationale Prs veto power does not authorize him to amend or repeal laws passed by Congress. FEDERALSIM NATIONAL AND STATE POWERS LEGISLATIVE POWER Doctrine of Limited Federal Legislative Authority o For Congress to act, there must be express or implied authority No general federal police power State local govts have police power they can do anything unless it is constitutionally prohibitive Congress cannot do anything unless there is express or implied authority Necessary and Proper Clause o Grants Congress the power to make all laws necessary and proper for carrying into execution any power granted to any branch of the fed govt. Ex: Congress has power to charter banks since that power is appropriate to executing Congress enumerated powers to tax, borrow money, regulate commerce, etc. (McCulloch v. Maryland) o EXAM TIP: Necessary and Proper Clause itself is not a basis of power; it merely gives Congress power to execute specifically granted powers; so it always Necessary and Proper Clause + some kind of enumerated power (taxing, spending power, regulating commerce, etc.) o McCulloch v. Maryland (1819) Congress created a fed bank. However, states were not happy with the bank calling in loans owed by the states when the country was experiencing economic hardships. States adopted laws that limited the operation of the bank within state borders. Maryland adopted a statute that taxed the bank, which required any bank not chartered by the state to pay an annual tax. The US bank refused to pay the tax, and John James sued on behalf of the state bank against McCulloch, who was a cashier of the fed bank to recover the money. Issue: May Congress constitutionally establish/incorporate a national bank? Held: Congress had the power to create a fed bank, and Maryland cannot impose a tax on a fed bank This issue defines power of congress to legislate. Analysis: Among enumerated powers given to gov establishing a bank or creating corporation is not one of them implied definition of means of carrying out enumerated powers BUT also dont find in Con any phrase excluding incidental or implied powers AND find in Con to lay and collect taxes; to borrow money; to regulate commerce o Such powers imply the ordinary means of execution implies power of conveying money from place to place as circumstances may require o If bank = means of carrying out one of the enumerated power not an implied power falls within power of Congress Con denies govt choice of means of moving money from place to place People give fed govt those enumerated power BUT since govt has right to do an act and has a duty of performing such act must be allowed to select the means Therefore Con provides 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 con in the govt of US Maryland would argue Word necessary is controlling the whole sentence and is limiting the right to pass laws for the execution of the granted powers to such as are indispensable and w out which the power would be of no real value

Excludes choice of means and leaves to congress that which is most direct and simple Court argues In articles of confederation (pre con) gave authority to national govt to legislate those things which are absolutely necessary o Fact that necessary and proper is used as opposed to absolutely necessary extends power to carry out the enumerated powers o Necessary and proper = convenient and not in contradiction to other areas of Con Necessary has many meanings implies no more that that one thing is convenient, or useful or essential to another Must have been intention of those who gave powers to ensure beneficial execution o Confining choice of means to very narrow limits cant do this Provision is made in a con intended to endure for ages to come and thus to be adapted to the various crises of human affairs otherwise legislature would be deprived of capacity to avail itself of experience to exercise its reason, and to accommodate its legislation to circumstances Its terms purport to enlarge not diminish powers vested in govt Had the intention been to make this clause restrictive would unquestionably have been so in form as well as in effect Issue: May states impose restrictions/controls on federally established agencies against the fed govt directives? Held: No. Congress had the power to create a fed bank, and Maryland cannot impose a tax on a fed bank This issue defines power of congress to legislate. Analysis: States retain the power of taxation power not abridged by a grant of a similar power to the Union power to be concurrently exercised by both govts Con however has capacity to withdraw any subject from the action of even this power EX: States are forbidden to collect taxes on imports and exports o Therefore when a states use of its taxing power is in its nature incompatible w the con laws of Union must give sway to the commands of Con which are supreme o Power to create implies power to preserve o A power to destroy if wielded by a diff hand is hostile to and incompatible w these powers to create and preserve When this exists that authority which is supreme must control Since Congress has the authority to create the bank power to tax the bank wielded by the states is the power to destroy the bank Supremacy Clause allows the removal of all obstacles to its action w in its own sphere and to modify every power vested in subordinate govts as to exempt its own operations from their own influence State may not mess w the means properly employed by Congress in executing the powers conferred on it by people of US So people of a single state cant confer a sovereignty which will extend beyond them to the rest of the people of our nation States have no power to retard, impede or otherwise burden the operation of the con laws enacted by Congress to carry into execution the powers vested in general govt o This case established the Rational Basis Test Direct quote from Justice Marshalls opinion: Let the end be legitimate, let it be w/in the scope of the constitutions, and all means which are appropriate, which are plainly

adapted to that end, which are not plainly prohibited, but consist with the letter and spirit of the constitution, are constitutional. COMMERCE CLAUSE Text of Const o Article 1, Section 8, Clause 3 empowers Congress to regulate commerce w/foreign nations and among the several states, and w/the Indian tribes. General Framework for Analysis o What does regulate mean? the power to prescribe the rule by which commerce could be governed also means prohibit o What does commerce mean? Pretty much any economic activity Buying and selling Manufacture Agriculture Mining Transportation, etc. o What does interstate mean? Movement across state lines The act of moving something across the state line The things moving across the state line (channels) Instrumentalities of interstate commerce Ex: locomotives any aspect of the instrumentality may be regulated By definition, the instrumentalities are so wrapped up in their operation that in order to regulate the interstate aspect of it, you have to regulate the intrastate aspect of it. Local activities as long as they have substantial effect on interstate commerce aka: Commerce Affecting Theory the local activity must have substantial effect on interstate commerce Substantial effect definition o An intrastate activity will have a substantial effect on interstate commerce only if the matter regulated is economic or commercial o Ways to show substantial effect The evil of the activity itself that is being regulated substantially affects the commerce Ex: you can control the unfair labor practice as long as it substantially affects the commerce Aggregate effects theory individual activities that have an aggregate effect on interstate commerce All parts of an enterprise, even if only a part of the enterprise affects interstate commerce, where the non-regulated part may adversely impact the part affecting commerce. Historical overview through cases o Gibbons v. Ogden NY granted Fulton and Livingston a monopoly to run ferryboats on the Hudson River, who gave Ogden sole rights to use. Gibbons operated a competing ferryboat on the Hudson b/n NY and NJ due to license granted by the fed government. Held: Congress has the power to regulate steamboats on the Hudson River under the commerce clause.

Channels of interstate commerce The waterways that the boats traveled on. If it is a navigable stream with goods coming in from other states and other countries, and Congress has plenary power to regulate people. U.S. v. E.C. Knight Co. Distinguished btw manufacture and commerce; indirect and direct effects; local and national activities. Held: Congress could regulate commerce activities that affected commerce directly, not manufacture activities which affected commerce only indirectly, and national activities but not local ones. The monopoly of sugar production at issue in the case was on the manufacture, indirect, and local side of the line; as a result, Congress could not regulate it. Shreveport Rate Case Required that there be a direct effect on interstate commerce A railroad was ordered to charge the same rates for shipment to Marshall, Texas, whether from Louisiana or from Dallas, Texas. Held: Congress can regulate intrastate rail rates which had close and substantial relationship to interstate rail traffic. Substantial effect Texas keeping lower prices on intrastate railways took business away from the interstate railways, thus having a substantial effect on interstate commerce. Instrumentalities Trains are instrumentalities of interstate commerce. Champion v. Ames (Lottery case) Upheld federal law prohibiting the interstate shipment of lottery tickets Held: Congress power to regulate interstate commerce includes the ability to prohibit items from being in interstate commerce. Caminetti v. U.S. The power of Congress under the commerce clause, including as it does authority to regulate the interstate transportation of passengers and to keep the channels of interstate commerce free from immoral and injurious uses, enables it to forbid the interstate transportation of women and girls for the immoral purposes of which the petitioners were convicted in these cases. Hammer v. Dagenhart (OVERRULED BY DARBY) Congress passed a law prohibiting goods manufactured by child labor from being transported in interstate commerce. Employees in a NC cotton mill sued to enjoin enforcement of the act. Held: Congress cannot regulate child labor within a state. The act did not regulate the transport among the states (valid commerce power and a pretext) but aided to regulate child labor. This matter is strictly within the power of the states to regulate the production of goods. NLRB c. Jones & Lauglin Steel Corp. J&L, the 4th largest steel mill in the US, was discriminating against union workers and were charged with violating unfair labor practices under the National Labor Relations Act. Held: Congress had the power to regulate bcs although the activities (employment at the mill) may be intrastate, they have a close and substantial relationship to interstate commerce (bcs mill was large producer of steel which has a significant effect on other goods). This was a highly integrated body (as compared to the small mill in Hammer). o Channels of interstate commerce J&L controlled the interstate commerce bcs they had a fleet of ships, railroads, etc. o Instrumentalities 75% of steel was transported out of state

o Substantial effect Steel-making has a significant effect on the production of other goods (like war supplies, cars, buildings, etc), and J&L was the 4th largest maker of steel. Analysis: o Manufacturing is essential part of the flow of interstate commerce o If they have such a close and substantial relationship to interstate commerce that their control is essential or appropriate to protect that commerce, congress cant be denied power to regulate o Wickard v. Filburn Filburn operated a small farm and grew more wheat than he was assigned to grow, the surplus of which he intended for personal consumption. He violated the Agricultural Adjustment Act of 1938, which was aimed at controlling the volume of wheat moving in interstate commerce to prevent surpluses and price surges. Held: Congress has the power to regulate intrastate commerce by restricting the amount of wheat a small, local farmer can grow. Cumulative effect Although the Filburn farm wheat will be insignificant, wheat is a volatile crop (supply and demand changes easily) and the most significant factor is homegrown wheat. If farmer Filburn does not buy his wheat from other growers but grows it himself, this will have a profound effect on interstate commerce when combined with all the other farmers who do this. o U.S. v. Darby Darby, a lumber manufacturer wholly in the state of Georgia but who shipped goods outside the state, was charging below the minimum wage set up by the Fair Labor Standards Act. Held: Congress has the power to regulate the employment practices of a company. The prohibition of shipping interstate goods produced under the forbidden substandard labor conditions is within the Constitutional authority of Congress. Expanded Congress ability to regulate thru Commerce Clause by endorsing a bootstrapping approach which linked the commerce clause and necessary and proper clauses. Since Congress could under the commerce clause regulate the interstate movt of goods made using certain labor, it could also regulate production of such goods as a means reasonably adapted to achieve the permitted end. o Heart of Atlanta Motel v. U.S. A local hotel discriminated against blacks. 75% of the registered guests are out of state travelers. The hotel advertised and solicited guests from out of state. The hotel was on a major interstate hwy. The hotel claimed that the Civil Rights Act of 1964 (which prohibits discrimination of race, religion and national origin in public places) was unconstitutional. Held: Congress regulate segregation under the Commerce Clause by claiming interstate commerce is affected by denying blacks hotel accommodations. Channel of interstate commerce The hotel facilitates travel in between states, especially those that are far. Although it is not the road, the hotels along the way are part of the infrastructure through which travel occurs. Hotel like RR facilitates interstate commerce. Like Chicago stockyard affects whites and blacks. Substantive effect Many blacks were nervous going through Georgia bcs they did not have a place to stay, which prohibited travel among the state in the south. Further, many major corporations would not move to the area bcs it was segregated. Cumulative effect Atlanta is part of a class of motels throughout the south that discriminated, and for the US to grow economically, there was a need to get rid of

the segregation in these areas. Basically, these hotels together prohibited blacks from partaking in traveling and inhibited interstate commerce of those states. o Katzenbach v. McClung Ollies BBQ was a family-owned restaurant that discriminated against blacks from eating inside the restaurant. Held: Congress could regulate segregation of restaurants bcs it had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce. Substantial effect The discrimination led to restaurants in such areas to sell less interstate goods, obstructed interstate travel, businesses suffered, and new businesses refrained from establishing there bcs of it. Cumulative effect Ollies BBQ is part of the hotels/restaurants infrastructure in the state and people are not going to travel if they cant eat at certain restaurants. See Heart of Atlanta Motel. McCulloch Congress had the power to prohibit racial discrimination (the means) bcs it was rationally related to the free flow of interstate commerce (the enumerated end).

o U.S. v. Lopez Lopez, a 12th grader, was arrested for carrying a firearm to school. He was charged with violating the Gun-Free School Zones Act of 1990 which made it a federal offense for any individual knowingly to possess a firearm in a school zone. Held: the legislation did not involve an economic or commercial activity which had a substantial affect on commerce and accordingly was outside the federal commerce power The court once against laid out the Test for interstate commerce: First, Congress can regulate the use of the channels of interstate commerce Second, Congress can regulate and protect the instrumentalities of interstate commerce. o Includes the power to regulate persons and things in interstate commerce Third, Congress may regulate those activities having a substantial relation to interstate commerce. o U.S. v. Morrison Congress enacted the Violence Against Women Act that authorized victims of gendermotivated violence to sue for money damages. Held: Congress does not have the power to regulate non-economic violent criminal conduct. Record of commerce effect Congressional findings on the effect of interstate commerce not enough bcs too attenuated a causal chain. Allowing Congress to regulate would lead to slippery slope and for them to regulate any crime. o Lopez statute contained no express jurisdictional element which might limit its reach to a discrete set of firearms having an explicit connection w or effect on interstate commerce There were no express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone The purported link btw gun possession and a substantial effect on interstate commerce was attenuated Proper resolution of the present case is clear gender motivated crimes of violence arent in any sense an economic activity

o Like statute in Lopez VAWA contains no jurisdictional element establishing that the fed cause of action is in pursuance of congresss power to regulate interstate commerce o While VAWA is supported by numerous findings regarding the serious impact that gender motivated violence has on victims and their families, the existence of such findings is not sufficient by itself to sustain the con of commerce clause legislation If accepted this reasoning would allow substantial effects on employment production transit or consumption. o Gonzales v. Raich CA passed a law that allowed people in the state to grow marijuana for medicinal use, the California Compassionate Use Act. The DEA seized the marijuana from the peoples homes under the Controlled Substances Act. Users and growers of marijuana for medical sought declaration that Controlled Substances Act (CSA) was unconstitutional as applied to them. Held: Congress can regulate intrastate, non-commercial cultivation of marijuana for medicinal use under the commerce clause. Cumulative effect Like the farmer in Wickard, Ps are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. And Congress feared when viewed in the aggregate, leaving home-consumed marijuana outside the regulating scheme would substantially affect the price and market conditions. o Although the small farmers (intrastate farmer) product that doesnt go into interstate commerce home grown wheat has a very volatile supply and price o Would throw off supply bcs farmers arent buying wheat harming the industry harming interstate commerce o No such thing as medicinal weed at the time Act was passed therefore Congress never heard arguments that weed would be sold so this must be a substantial effect Different Analysis: This was a trade off b/n liberals and conservatives (outlawing medical weed in exchange for getting Wickard back into play). Comparison w Lopez o Lopez actual interstate connection Limiting Congress power o Commercial connection here Comparison w/lottery ticket case o Congress concluded that drugs were dangerous, had harmful effects and needed to be banned Thus the surplus of marijuana falls into the regulation the means of regulating interstate transactions o This is an omnibus drug law and thus congress could conclude that all these things are connected. 10th and 11th Amendments as Limits on National Power o Text of the 10th Am: 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. New York v. U.S. Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1995, which attempted to force each state to make its own arrangements for

disposing of the waste generated in that state under the guise of several incentives. The third incentive the take title provision was the most severe. If the state does not work out some solution to dispose, then it gets the ownership of all the radioactive waste in their state. New York failed to comply with the statute and brought suit challenging the constitutionality of the three incentives for states to deal with their own waste. Held: The take title provision violated the 10th amendment. Congress has the power to encourage states to follow fed regulations but not to compel or coerce the states to do so. Here, Congress is requiring NY to pass its own regulations to get rid of radioactive waste. o Congress cant force states to do that court gives power back to the states o 10th Amendment Limits Congress commerce power. The Federal Government may not compel the States to enact or administer a fed regulatory program. Constitution gives the power to both fed and state to regulate, and the fed government is permitted to do one of two things: 1) preempt state law that is contrary to fed interests, or 2) to hold out incentives to the state to encourage them to adopt the fed regulation. Printz v. U.S. Congress enacted the Brady Act, a law aimed at controlling the flow of guns, which local state officials to do a background check before a person can buy a handgun. Officials challenge constitutionality of this act. Held: Congress could not compel the local officials to carry out administrative tasks in furtherance of a fed regulatory program. o 10th Amendment The law violated the 10th amendment. Congress cant commandeer state officials o Arguments Government Act doesnt require state officials to make policies like in NY v US here issues final directives Constitution allows Congress power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers Citizen Framers intended to preserve sovereignty of states and not require state employees to perform fed obligations NY v US o Analysis Narrow issue notion of commandeering state legislation Congress cant commandeer states to follow fed legislation o How to spot a 10th Amendment issue Is the federal govt regulating the state or targeting the state directly as serving entity? Is the federal govt asking the states to adopt certain laws or certain federal policies This is to be distinguished from cases where some conditions of employments are implemented Is the intrusion of the state sovereignty more than trivial? Even if there is an intrusion of state sovereignty, is there a compelling federal interest that nevertheless outweighs the state sovereignty?

o How can fed govt make states help it in enforcing a federal law? By exercising the spending power rewarding the states actions of implementing federal policies or simply asking the states to do it. 11th Amendment and Sovereign Immunity o Text of the 11th Am: "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 Subjects of any foreign state. o Sovereign Immunity: a state govt cannot be sued w/out its consent Preeminent purpose of sovereign immunity is to protect state govts and as such, it is broader than the protections of the 11th Amendment. o Article 3, Section 2 refer to the very first paragraph of the outline o Suits barred under 11th Am (REMEMBER: W/OUT STATES CONSENT) Suits against a state govt by citizens of another state or citizens of a foreign country Indian tribes cannot sue state govts in federal court w/out their consent Suits against a state by its own citizens Suits against a state by foreign nations or Native American tribes Alden v. Maine: state govts cannot be sued in state court w/out their consent States cannot be named as Ds in federal administrative agency proceedings Actions against state govt for damages Actions against state govt for injunctive or declaratory relief where the state is named as a party Actions against state govt officers where the effect of the suit will be that retroactive damages will be paid from the state treasury or where the action is the functional equivalent of a quiet title action that would divest the state of ownership of land Actions against state govt o Suits NOT barred under 11th Am US govt can sue a state w/out its consent Suits against a state by another state Suits against cities, municipalities Exception: a local govt in state A cannot be sued if there is so much state involvement in the municipalities actions that the relief, in essence, runs against the state. o Factors to look for: state funding; cooperation btw state officials and local govt officials o EXCEPTIONS TO 11TH AM (MEANS: CAN SUE) Certain actions against state officers Actions against state officers for injunctions o A federal court may enjoin a state officer to refrain from future actions that violate federal law or to take prospective actions to comply w/constitutional mandates (Ex Parte Young case) Actions against state officers for monetary damages from officer o A federal court may hear an action for damages against a state officer for violating federal law if the monetary damages are to be paid out of the officers own pocket. o Rationale: by acting outside the scope of federal law, the officer is stripped of his representative capacity action is not one against a state, rather is against an individual. State CONSENT State may consent to suit in federal court

Consent must be express and unequivocal: must clearly waive its 11th Am immunity TODAY, states generally consent to be sued. They do so in two ways: o By making an appearance on the merits of the case o Legislature will adopt a broad consent to be sued statute Congressional Removal of immunity under 14th Am Seminole Tribe of Florida v. Florida o Pursuant to the commerce clause, Congress passed a law that states must negotiate in good faith with Indian Tribes to permit gambling, and the law authorized suits against state governments to enforce the law. The Seminole tribe sued Florida alleging that the state was not negotiating in good faith. o Held: Congress had the power to pass the law but not to reduce the states sovereign immunity under the commerce clause. Rule: Congress can only authorize suits against state governments, and override the 11th amendment, when it act pursuant to 5 of the 14th amendment. Even when Congress is given law-making power in a particular area (i.e. commerce clause), the 11th amendment prohibits authorization of suits by private parties against states, except under 5 of the 14th amendment (bc was made after the 11th and intended to modify it). Congress may not abrogate state sovereign immunity pursuant to Article I powers Two-Part Test to Determine If Congress Has Abrogated Sovereign Immunity 1st part: Has Congress unequivocally expressed its intent to abrogate the immunity? 2nd part: Has Congress acted pursuant to a valid exercise of powers to abrogate? o REMEMBER: If you are a citizen of State B, can you go to state B's court and sue state A without state A's consent? - YES, bcs a sovereign can always open up its courts to suits. TAXING AND SPENDING POWER o Generally, Congress may tax and spend for the general welfare o Text of the Clause: The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common Defense and general Welfare of the United States; but all duties, imposts and excises shall be uniform throughout the US. This means Congress may adopt any tax to raise revenue and any spending program to spend it that it believes will serve the general welfare. General welfare it has to benefit the people as a whole, not individuals, special groups or factions. Generally, it is not a problem to find general welfare Madison view: the power to tax and spend for the general welfare must be confined to the enumerated powers under the Constitution (interstate commerce, post office, etc) Hamilton view: the power to tax and spend is a separate power conferred to Congress from those in the enumerated clause, limited only by the requirement it be for the general welfare of the US. The SC adopts this view in US v. Butler.

o TAXING

Congress can legislate in two ways: 1. directly connecting the legislation to revenue raising, Article 1, Section 8 express power (such as Commerce clause, for example); or 2. indirectly in two ways: o implied powers theory some kind of implied power derived from an express power (from #1 above), or o Necessary and Proper Clause + an express power (from #1 above) Ex: controlling bank notes by tax is connected to Congress power to regulate the coin, commerce clause, and taxing power - #1 of the above analysis (express power express bcs these are found in the text of the Constitution as directly given to Congress) Taxing analysis o Start analysis by looking at the text of the statute If it is an expenditure, then look for the spending power (discussed below) But if the tax is not for accomplishing spending, then move on to the next point revenue raising v. regulatory tax o Determine whether the tax is for revenue raising or regulatory in nature. Factors to determine whether tax is regulatory or revenue raising o purpose of the tax o Who enforces the tax? if IRS/ Treasury Department, more likely to be revenue raising but if some other govt agency, then more likely regulatory Ex: Bailey v. Drexel The Child Labor Tax statute: any factory that employed children under age of 14 must pay an excise tax of 10% of their profits for the year. It doesnt matter whether the child is employed for one day or the entire factory is composed of children. In this case, the Secretary of Labor is collecting the tax, as opposed to the Treasury Dept which suggests that the purpose of the statute is not collecting taxes or raising revenue, but to regulate child labor, therefore, it was a regulatory/penalty tax. o Does the tax attach to a knowing behavior? Ex: In Drexel case, the factory must knowingly employ the child therefore, the scienter intent requirement. o If the purpose of tax is determined to be revenue raising (which means the Congress legislated through #1 express Taxing power), then the next step is to determine whether the revenue raising effect is substantial The less revenue the tax raises, the less likely it is a revenue raising effect. The less money is raised by the tax, the more it might be regulatory. o If the purpose of tax is determined to be regulatory, it does not automatically mean that it is unconstitutional. The Congress may still justify the tax by using #2 Necessary and Proper clause + an express power. If Congress fails to justify it under #2, then the tax is unconstitutional. o TODAY, the court is much more likely to find a revenue-raising tax than a regulatory tax and given the Congress vast expansion of commerce

power, it is much easier to sustain the constitutionality of tax by using Necessary and Proper Clause + Commerce power. SPENDING US. v. Butler Held: Congress is not limited to spending only to achieve specific powers granted in Article 1 of the Const. Rather, Congress may spend in any way it believes would serve the general welfare, so long as it does not violate another constitutional provision. Conditions on grants to state and local govts South Dakota v. Dole A condition was place on receipt of federal highway funds: elevation of the drinking age. Any state in which persons younger than 21 could lawfully possess and consume alcohol would consequently lose 5% of federal highway funds allocated by Congress. Held: the court reaffirmed the Congress authority to attach conditional strings to the receipt of fed funds by state or local govts. In addition to the requirement that spending must be for the general welfare, the court devises more scrutinous criteria for determining the constitutionality of the conditions imposed. (See immediately below for spending power analysis). Spending power analysis 1. Is spending w/in the scope of general welfare? 2. Is the condition constitutional? 3. Look at the condition itself. There are three requirements: a) Condition must be express and clear o There can be no surprises, and the state must be aware of the condition and its consequences o If the state does not like the condition, it can simply say NO, but the only way it can do so knowingly is if the condition is express b) Condition must be relevant/germane to the Constitutional purposes of the grant itself o Each condition should relate to the general program. o In South Dakota, the court found a connection btw govt regulation and underlying interest underage drinking might cause accidents on interstate highway; also, in the aggregate, there is a connection to interstate commerce. c) Condition must not be coercive on the state o How much does the state lose in case it does not comply with the condition? o Coerciveness brings the issue of commandeering discussed in Printz case (page 26-7 of this outline) you dont want to coerce the state into some behavior that would go against state sovereignty. o In South Dakota, the court found no coerciveness: the loss of only 5% of the amount was not substantial enough to be coercive on the state (losing half or all of the funds might be).

STATE POWERS IN A FEDERAL SYSTEM

STATE REGULATION AND CONGREDSSIONAL PREEMPTION Supremacy Clause o Article VI of the Const contains the Supremacy Clause which provides that the Const, and law and treaties made pursuant to it, are the Supreme Law of the land. o If there is a conflict btw federal and state law, the federal law controls and the state law is invalidated bcs federal law is supreme. ANALYSIS o First, if Congress has legislated, the question is whether the fed law preempts the state or local law do PREEMPTION analysis. o Second, even if Congress has not acted or no preemption is found, state or local law can be challenged on the ground that it excessively burdens commerce among the states do DORMANT COMMERCE CLAUSE analysis. Congressional Preemption o Policy: preemption doctrines are about allocating governing authority btw fed and state govts. o The SC has identified 2 major situations where preemption occurs: Express Express preemption occurs where there is explicit preemptive language in the statute itself. Congress can make federal law exclusive in a field by expressly preclude state or local regulation in an area. Examples o Federal Meat Inspection Act: Marking, labeling, packaging, or ingredient requirements in addition to, or different than, those made under this Act may not be imposed by any State. o Airline Deregulation Act of 1978: No state shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier. Implied SC will find implied preemption if there is a clear congressional intent that federal law should exclusively occupy a field. Two categories: Field Preemption and Conflict Preemption o Field Preemption Definition: the scheme of fed regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it Means that federal law is exclusive in the area and preempts state laws even if they serve the same purposes as the fed law and do not impede the implementation of fed law. Factors to determine whether there is field preemption Is it an area where the fed govt traditionally has played a unique role? o Foreign policy and immigration are two area where SCX found field preemption, given fed govts preeminent and exclusive role in these areas. Has Congress expressed an intent in the text of the law or in the legislative history to have fed law be exclusive in the area?

o Rice v. Santa Fe Elevator Corp (not covered in class): the issue was whether states could regulate grain elevators licensed by fed govt. SC found that the purpose behind fed law was to eliminate dual fed and state regulations of grain elevators. Would allowing state and local regulations in the area risk interfering w/comprehensive fed regulatory efforts? o Although field preemption can be found in the absence of such interference, the potential for impeding fed scheme can be crucial in a court finding field preemption. Is there an important traditional state or local interest served by the law? o Court is more likely to avoid finding field preemption if it regards the state interest as particularly important and in an area that has been traditionally regulated by state and local govts. o Conflict Preemption 2 situations: compliance impossible and state law as obstacle Compliance w/both fed and state regulations is a physical impossibility If fed law and state law are mutually exclusive, so that person could not simultaneously comply w/both, state law is deemed preempted. Fed and state laws are mutually exclusive if fed regulation is seen as setting the exclusive standard; however, they are not mutually exclusive if fed regulation is viewed as setting only the minimum standard (acting as floor rather than ceiling), w/states allowed to set stricter standards. State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress This type of situation turns on how the court characterizes the fed purpose. Pacific Gas & Electric v. State Commission o CA law imposed a moratorium on the construction of nuclear power plants until the State Energy Commission determined that there was a safe means of disposing of high-level nuclear wastes that had been approved by a fed agency. o SC concluded that Congress intent was to ensure safety, while CAs goal was economic; therefore, CA law was not preempted. DORMANT COMMERCE CLAUSE o Definition: Dormant Commerce Clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. o Analysis comes up in 2 situations:

 If you determine that a particular fed statute does not preempt state statute; or The fact pattern presents just the state statute o Early Precedents: Cooley Doctrine Attempted to draw rigid categories of areas where fed law was exclusive and those areas were states could regulate. Cooley Doctrine Test Asks 2 questions: o Whether the subject is of national importance and is a nature that requires uniform national regulation; or o Whether the subject is of a nature that requires diverse local regulation. Modern approach is not based on this categorization; rather on balancing the benefits of a law against the burden that it imposes on interstate commerce (discussed below). o Modern Analysis of Dormant Commerce Clause Two situations: discrimination cases and cases that are nondiscriminatory and where the effects balancing test is used. DISCRIMINATION Start analysis w/the following crucial question: o Does a state law discriminate against out-of-staters or it treats all alike regardless of residence? This means differential treatment of in-state and out-of-state economic interests that benefits the in-state and burden the outof-state. In general, a law will be found discriminatory either if it facially discriminates against out-of-staters or if it is facially neutral and is deemed to have a discriminatory purpose and/or impact. Two types of Discriminatory situations o Laws that facially discriminate against out-of-staters. State expressly draws a distinction btw in-staters and out-ofstaters Philadelphia v. New Jersey: NJ enacted a statute which prohibited the importation of waste which was collected or originated in another state. o Held: the law was facially discriminatory. Reciprocity requirements are facially discriminatory Reciprocity is where a state allows out-of-staters to have access to markets or resources only if they are from states that grant similar benefits to their citizens Local regulations that treat out-of-staters in a disparate manner will be treated as discriminatory even though they all discriminate against those in other parts of that state. Deans Milk Co. v. Madison: there was a city ordinance that required that all milk sold in the city had to be pasteurized w/in 5 miles of the city. The law prevented mild that was pasteurized in other states form being sold in the city, as well as in other parts of that state. o Held: the law was facially discriminatory o Laws that are facially neutral but have discriminatory impact

A law is likely to be found discriminatory if its effects is to exclude virtually all out-of-staters from a particular state market, but not if it only excludes one group of out-of-staters. A law is likely to be found discriminatory if it imposes costs on out-of-staters that in-staters would not have to bear. The court will likely find discrimination if it believes that a law is motivated by a protectionist purpose, helping in-staters at the expense of out-of-staters. If the statute is found to be discriminatory, it may be valid only if it furthers an important, non-economic interest (such as health and safety), and there are no reasonable less burdensome alternatives available. o Non-economic health and safety interest The purpose must be unrelated to economic protectionism Shielding in-state industries from out-of-state competition is almost never a legitimate local purpose Strict scrutiny is applied which implies that there must be an important or even a compelling reason for the law. Best illustrated by comparison of two cases (the first case was not covered in class): Maine v. Tailor: The state could prohibit the importation of live baitfish into the state bcs the state could demonstrate that such baitfish might bring certain parasites into the state or, in other ways, have a detrimental effect on the states wild fish population. Hughes v. Oklahoma: The state could not prohibit export of live baitfish to out-of-state purchasers bcs the sale of such fish to out-of-state purchasers would not impair any interest of the state, except the interest of protecting local purchasers of baitfish from competition by out-ofstate purchasers. o Less burdensome alternatives A discriminatory law will be upheld on if the purpose could not be served as well by available nondiscriminatory means. Dean Milk Co. v. City of Madison: the court found that the law discriminated against mild from other states, notably Illinois, and explained that Madison could achieve its goal of ensuring safe milk by less discriminatory alternatives such as by sending its inspectors to importing producers or by relying on inspections by federal authorities. Summary of DISCRIMINATION Analysis o State laws that discriminate against out-of-staters are almost always declared unconstitutional. Such a law will be allowed only if it is proved that the law is necessary the least restrictive means to achieve a non-protectionist purpose.

NON-DISCRIMINATION Analysis If the statute is found to be nondiscriminatory, then the Effects Balancing Test is applied. o TEST: the court balances the laws burdens on interstate commerce against its benefits.

A nondiscriminatory law will be invalidated only if the burden on interstate commerce outweighs the promotion of legitimate non-discriminatory local interests. Case-by-case analysis: heavily fact dependent and the outcome turns on how the court appraised the burdens and the benefits and how the court weighs them. o State laws regulating the size of trucks and trains Largest group of cases decided by SC concerning non-discriminatory state laws involved regulations of the size of trucks. South Carolina State Highway Dept v. Barnwell: South Carolina law prohibited the use on state highways of motor trucks and semitrailer motor trucks whose width exceeds 90 inches and whose weight, including load, exceeds 20,000 pounds. The effect of the law was to exclude 85-90% of the motor trucks used in interstate transport. Held: SC upheld the law, emphasizing the need for judicial deference to state highway regulations. The court described how the weight limits might protect South Carolinas roads and how the width restrictions could enhance safety bcs as the width of trucks is increased, it obstructs the view of the highway, causing much inconvenience and increased hazard in its use. Kassel v. Consolidated Freightways Corp: Iowa law banned 65-foot double trailers Held: SC declared the law unconstitutional by weighed the asserted safety purpose against the degree of interference w/interstate commerce. The court found that the law substantially burdened interstate commerce by forcing these trucks to avoid Iowa or to detach the trailers and ship them separately. Southern Pacific Co. v. Arizona: Arizona state law limited train lengths to 14 passenger or 70 freight cars. Held: SC declared unconstitutional bcs the law put a substantial burden on commerce, but did little to enhance safety. Bibb v. Navajo Freight Lines: A state law required that all trucks in the state use curved mudguards to prevent spatter and enhance road safety. Held: SC declared unconstitutional bcs the law put a substantial burden on interstate commerce as straight mudguards were legal in 45 other states and curved mudguards were illegal in one other state. Trucks would have to either avoid Illinois or stop at the border to change their mudguards. Also, the court found that curved mudguards have no safety benefits over straight ones and actually create hazards increasing the heat around the trucks tires. Exception o MARKET PARTICIPANT Definition: If the state is literally a participant in the market, such as w/a state-owned biz, and not a regulator, the dormant commerce clause does not apply. States may also favor their citizens in receiving benefits from govt programs. Market participant = buying or selling products; hiring labor; giving subsidies; owning biz Limitation: state businesses may favor in-state purchasers, but they may not attach conditions to a sale that discriminate against interstate commerce. o South-Central Timber Development, Inc. v. Wunnicke

The court declared unconstitutional an Alaska law that required that purchasers of state-owned timber have the timber processed in Alaska bfr it is shipped out of state. Thus, the court drew a distinction btw the ability of a state to prefer its own citizens in the initial disposition of goods when it is a market participant and a states attachment of restrictions on dispositions subsequent to the goods coming to rest in private hands. INTERSTATE PRIVILEGES & IMMUNITIES (P&I Clause) Article IV, Section 2: the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. Meaning that When you go from one state to another, that state cannot treat you worse than it does its own citizens. Note that a state may treat citizens horrible, so long as it treats outsiders just the same and not any worse then the p&I clause is not invoked. o SC has interpreted this provision as limiting the ability of a state to discriminate against outof-staters w/regard to fundamental rights or important economic activities. Relationship to Dormant Commerce Clause o Both can be sued to challenge state and local laws that discriminate against out-of-staters. o Key differences P&I clause can be used only if there is a discrimination against out-of-staters, while DCC can be sued to challenge state and local laws that burden interstate commerce regardless of whether they discriminate against out-of-staters and with dormant clause will receive strict scrutiny. Corporations and aliens can sue under DCC, but not under P&I as the latter is expressly limited to US citizens. Market participant exception, while valid under DCC, does not apply to P&I. ANALYSIS o 2 basic questions: 1. Has the state discriminated against out-of-staters w/regard to privileges and immunities that it accords its own citizens? If not, end of discussion. 2. If there is such discrimination, is there a sufficient justification for the discrimination? o Did the state discriminate against out-of-staters? What are privileges and immunities of citizenship? Rights that are fundamental to the concept of single nationhood o Includes: Constitutional rights Important economic activities Right to own property in another state To come into the state and pursue biz Right to use states courts o Does not include: The right to vote in the states elections Hunting game P&I limits the ability of a state or local govt to discriminate against out-of-staters w/regard to their ability to earn a livelihood. This area is when most of the P&I cases will arise If there is neither such discrimination nor discrimination w/regards to constitutional rights, then no P&I violation and no need to continue analysis. o If there is such discrimination, is there sufficient justification for the discrimination?

TEST: P&I clause does NOT preclude discrimination against nonresidents where: There is a substantial reason for the difference in treatment, and The discrimination against nonresidents bears a substantial relationship to the States objective. o W/regard to the second prong, the court considers the availability of less restrictive means to achieve the objective which would tip the balance toward discrimination. Discrimination must be proved necessary to achieve a substantial govt interest. Thus far, the Court has not found that any law meets this rigorous test.