CON LAW OUTLINE – Mascott Fall 2022

Test Tips: you should only be applying the law to the facts; do not just restate the law. No points
in just stating the law. Know which fact patterns invoke certain doctrines. You need to be getting
1-2 steps into the analysis. You accrue more points with the more arguments that you raise. Case
names are not super relevant unless there is a clear fact pattern; it would be a signal that you
understand the case law if you cite cases. Understanding the general factual context of the case is
helpful. Argue the similarities and the distinctions. She will open the exam instructions an hour
before the exam. What are all the constitutional defenses and claims a litigant might bring. What
are the hooks of power that Congress might use to pass that act. Argue both sides!! She doesn’t
care if you give the name or article of the Constitutional provision. Don’t give the progression of
the law, just give the current law (maybe you could do: under the historical understanding of the
Commerce Clause the answer would be x, but under the modern doctrine the answer would be
y). UNDERSTAND FEDERALISM AND SEPARATION OF POWERS (this was a test
question last year, however she talks about this a lot). You can still get some points for outlining.

HISTORY AND OVERVIEW

I. Separation of Powers and Federalism (horizontal separation of powers) (the
Constitution grants the power from the structure, text, and assignment of the
Constitution)
i. Legislative: Policymaking
ii. Executive: Enforcement of the policy
iii. Judicial: Adjudicating and determining the meaning of the policy
b. History and Creation of the Constitution (Art. 5)
i. There had to be a proposal and ratification to pass the Constitution and
future Amendments
1. There must be a ⅔ agreement in one of the Houses for the
Proposal
2. Then there must be ¾ of the states for ratification
c. There are limits to what can be amended within the Constitution: an amendment
cannot deprive any state of their representation without their consent (an
amendment could not change how many senators are elected to a state)
II. Interpretative Methods of Constitutional Law:
a. Originalism: meaning of the provision at the time it was passed; original public
meaning (tends to be more objective and absolute)
b. Living Constitutionalism: holds to the idea that the Constitution is flexible and
the meaning of the words is meant to change over time to fit the more modern
standards
c. Intentionalism: looking to the intentions of those who enacted the law
d. Purpose: looking to the purpose of the law; allows the interpreter to import the
goals of the act
e. Text, History, and Tradition: like originalism but more willing to look at the
practices of the time alongside the raw text
f. Stare Decisis: relies on following the precedent set in previous cases
III. Tiers of Scrutiny when Analyzing Constitutional Violations (When the state interest is
more compelling as to allow for a Constitutional right to be violated)
a. Rational Basis: the law must have a legit purpose or government interest (for
smaller rights)

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b. Intermediate Scrutiny: a balance somewhere between rational basis and strict

scrutiny
c. Strict Scrutiny: The law must advance a strong and compelling government
interest that is narrowly tailored (for big rights like the First Amendment)
IV. Interpretive Cases
a. DC v. Heller (2A grants the right of self-defense in the home)
i. Both Scalia (majority) and Stevens (dissent) use history and text to
justify their position. They also both relied on the precedent that Miller
set (stare decisis) → Scalia had to distinguish Heller from this case to
not overturn Miller.
1. Scalia’s Sources
a. Breakdown of the law and uses text and history to show
that the right is an individual right not just a collective
right of the militia; however, he does specify that there can
be limits to the law → places more emphasis on the phrase
“right of the people.”
b. Bill of Rights: uses the phrase “of the people” to interpret
the 2A (assuming the meaning would be consistent as they
were all passed simultaneously).
c. State Constitutions at the time to show that they
enumerated that the right to keep and bear arms is an
individual right
2. Stevens’s Sources
a. Amendment needs to be read as a whole to understand the
right; since the right begins with the term militia everything
flows from that indicating that it is only a collective right.
b. State Constitutions say that if the Framers wanted the 2A to
be an individual right they would have specified that as
they did in the state Constitutions.
ii. Breyer Dissent: Uses the avoidance canon à the law in DC does not
fully prohibit the keeping of guns in the home, so we should not analyze
more than the issue at hand.
b. Bruen Gun Case (2A grants the right to carry a weapon outside the home) à
Thomas Majority
i. Relies on history, text, and tradition to say that the New York “may
issue” law was unconstitutional
ii. Thomas rejects the tiers of scrutiny test and says that the law should be
analyzed through a historical framework: you can do the most with the
right unless there is a history or tradition at the time of passage of
regulation in an area of the 2A

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JUDICIAL REVIEW
I. The Judicial Branch
a. Article III: Grants the Judicial Branch the power
i. Congress has the power to establish the lower courts (make courts and
determine their jurisdiction)
ii. SCOTUS is established by the Constitution
b. This is the most insulated and least politically motivated branch (however since
they are nominated by a president and confirmed by the senate they are political
in some ways)
i. Life tenure of judges
ii. Cannot have a salary reduction
iii. Not elected
c. Federal judges can be impeached and convicted if the conduct is so outrageous →
this has only happened maybe 25 times
II. Judicial Review:
a. Established with Marbury v. Madison (established that SCOTUS has the power
of judicial review of federal laws and can strike down laws that are not
Constitutional)
i. Facts: Judiciary Act of 1789 gave the court power and direction to act.
However, SCOTUS stated that they could not have original jurisdiction to
issue the writ of mandamus; claiming they cannot have original
jurisdiction over all cases and controversies because the Constitution
allows for lower federal courts, state courts, and federalism. Marbury does
not get the position, even though he should. He sued directly to the
Supreme Court because the Judiciary Act gave SCOTUS the power the
issue a writ of mandamus.
ii. Holding: While Marbury should have been granted the writ of mandamus,
SCOTUS did not have the jurisdiction to issue that grant even though the
Judiciary Act from Congress granted that power (the Judiciary Act was
deemed unconstitutional by Marshall in this case). Congress cannot give
SCOTUS original jxn.
iii. Key Take Aways:
1. Limited the power of SCOTUS while establishing a precedent of
great power to strike down federal laws enacted by an elected
legislature. Marshall both limited the number of cases the Supreme
Court can hear, while also greatly expanding the power of the
Court through judicial review of Federal laws passed by Congress.
2. Every right has a remedy → the issuance of the writ of mandamus
was the correct remedy in this case however, it was outside of
SCOTUS’s jurisdiction to issue that remedy
b. Martin v. Hunter’s Lessee (SCOTUS can find state laws/rulings unconstitutional)
iv. Facts: A land dispute in VA, where the VA Court of Appeals (highest
court) ruled in favor of Hunter (the state granted the land to Hunter) BUT
SCOTUS reversed the decision in favor of Martin under the power granted
to them in § 25 of the Judiciary Act of 1789. Virginia refused to

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implement the SCOTUS for Martin order because it claimed that states are
sovereign, and SCOTUS does not have jurisdiction over state matters.
v. Holding: Under Art. III all power of the judiciary is vested in SCOTUS,
indicating that state matters can be heard at SCOTUS on appellate
jurisdiction. This is needed for the sake of uniformity (each state cannot
interpret the Constitution how they please) and in matters of foreign
affairs.
c. Cooper v. Aaron (SCOTUS interpretations of the Constitution bind all, not just
the immediate parties to a suit)
vi. Facts: Arkansas argued that the Brown v. Board of Education only applied
to Kansas, and Arkansas said they did not have to desegregate their
schools because they were not a party.
vii. Holding: The Brown ruling needs to be applied amongst all the states
because state officials take an oath to the Constitution and the Constitution
had been interrupted to exclude school segregation.
viii. Take Aways: SCOTUS can strike down BOTH federal laws and state
decisions; SCOTUS cases decisions and Constitutional interpretations
apply to ALL states.
III. Obstacles to Judicial Review: Issues the Supreme Court Cannot Adjudicate
a. Political Questions: Baker v. Carr Factors Making a case Not Justiciable
1. A commitment of the issue to a branch of government other than
the judiciary → SCOTUS cannot tell another branch what to do.
2. Lack of judicially discoverable or manageable standards for
resolving the issue → there must be a law on point.
3. Impossibility of the judiciary to resolve the issue without first
making a policy determination.
4. A judicial decision of that matter as a lack of respect for other
branches of government (embarrassment from the judicial
determination would ensue);
5. A political decision has already been made.
6. The potential for multiple pronouncements by various branches on
one question.
ii. Baker v. Carr Holding: There are certain judicial standards already in
place for adjudicating such claims, and because Baker is an individual
person suing a state government, there is no separation of powers
concerns implicated. This claim does not fall under one of the six tests
of a political question and therefore the claim is justiciable.
iii. Baker v. Carr Rule: A challenge to malapportionment of state
legislatures brought under the Equal Protection Clause is not a political
question and is thus justiciable (however if it were brought under the
Guarantee Clause it would be)
b. Powell v. McCormack
i. Rule: A challenge to restrictions on congressional membership set by
the United States House of Representatives is justiciable and not a
political question.

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ii. Holding: Because there was demonstrable Constitutional text on the

subject of electing House members, there were guidelines for the Court
to follow, making this not a political question. They are not engaged in a
policy-making determination.
c. Nixon v. U.S.
i. Rule: The constitutionality of Senate impeachment proceedings is a
non-justiciable political question incapable of judicial adjudication
because the Constitution grants the Senate SOLE power to TRY
impeachments.
ii. Holding: The term “try” does not impose the limitation on the Senate
that the WHOLE Senate must embark on the fact-finding mission. Also,
since the word “sole” is used, the Courts are excluded from adjudicating
matters of impeachment (which are inherently political in nature). There
has been a textually demonstrable commitment to the senate for
impeachments.
IV. Cases and Controversies (Art. III § 2)
a. The minimum threshold question for Art. III courts to hear cases. Courts cannot
issue advisory opinions.
1. Muskrat v. US (1911) → leading case on advisory opinions
1. Facts: Congress passed a law that negatively impacted some
Native American property interests in order to grant more people
land. Those whose property rights were infringed upon brought
suit against the United States; however, the adverse party, in this
case, was the people that were receiving the land grants. Congress
essentially created a private right of action for the Indians to sue
the government over the validity of the act. The real controversy
was not between the Indians and the government, but between the
current property holders and the Indians.
2. Rule: The United States Supreme Court does not have jurisdiction
to determine the constitutional validity of an act of Congress if
there is no case or controversy between adverse parties. The US
did not sit in dispute with anyone. There was no adversarial
parties. SCOTUS can only determine the Constitutionality of a law
when there is one party who’s rights have been taken away.
3. The Plaintiff might have been able to sue those who were granted
the land if there was a law stating that the government dispersal of
the land of unlawful.
1. The old Indians would still have a new claim in the land.
b. Ripe: claim be sufficiently ready for adjudication in order to be heard by a court;
a claim is only ripe if there is a present dispute that is not speculative in nature.
c. Mootness: legal proceeding no longer affects the resolution of a legal issue due to
loss of controversy or because the issue has become an “academic” exercise.
d. Case: Someone in the case has suffered a cognizable harm
e. Controversy: there must a concrete dispute between the two parties with
adversarial positions, an interest at stake, and the claim at stake has a personal
impact on the parties.

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V. Standing
a. A legal doctrine limiting the right to sue to those parties who can show some
injury to their legal rights, a specific grievance or impact that can be remedied by
judicial action, or a statutory basis for bringing a suit. The suing party must have
suffered a harm.
1. Elements for Harm
1. Injury
2. Causation (the link tracing the legal violation and the harm must be
direct)
3. There must be a high likelihood the injury will be redressed by a
court decision
b. Allen v. Wright (leading case on the issue of standing)
i. Facts: Black parents argued that the failure of the IRS to deny tax-
exempt status to racially segregated private schools caused injury to
their children on two grounds. Firstly, IRS’s failure to comply with
desegregation laws caused them direct harm by creating a climate of
stigma against their children. Secondly, their children’s ability to attend
a desegregated school had been directly impaired because of the IRS’s
failure to remove private schools’ tax-exempt status.
ii. Rule: To have standing to bring a lawsuit, plaintiffs must sufficiently
allege that they have personally suffered a distinct injury, and the chain
of causation linking that injury to the actions of a defendant must not be
attenuated.
iii. Holding: The parents do not have standing to sue on either ground
because they have not alleged a sufficiently personal injury and chain of
causation linking the alleged inability of their children to attend a
desegregated school to the specific actions of the IRS is too attenuated.
iv. Stevens Dissent: He looks at the elements for standing systematically,
making it easier to connect the dots between the claim and the harm.
c. Lujan v. Defenders of Wildlife (modern case on standing; the issue of lobbyist
groups bringing cases claiming standing)
i. Facts: Sec. of the Interior was only going to review projects impacts on
endangered species only in the US and high seas (rather than all over the
world).
ii. Holding: the plaintiffs have no standing because the injury claimed is
too speculative → there must be a concrete injury not a potential claim
of injury.
1. Problem with this holding: since the bar to have standing here is
so high, all decisions by the Secretary of the Interior are basically
unreviewable
iii. Rule: Under Article III of the Constitution, a party does not have
standing to litigate a generalized grievance against the government in
federal court if she suffered no personal injury other than the harm
suffered by all citizens.
iv. Kennedy Concurrence: Congress should have provided a cause of
action for harm in the statute.

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v. Other Actionable Harms:

1. Plaintiffs could have sued the party that is causing harm to the
land
2. Party could have gone through the political process
VI. Congress can limit federal court jxn by statute and therefore limit the power of
judicial review.
a. Art. III Sec. 2 Cl. 2: Congress can limit appellate jxn (can impact original jxn of
lower courts which in turn can affect what will be heard at SCOTUS)
i. Original Jxn: SCOTUS can hear the case first. SCOTUS has the
discretionary power to choose what cases to hear.
ii. Appellate Jxn: a lower court must hear a case before it can be heard by
SCOTUS
b. Ex Parte McCardle
c. Facts: McCardle was arrested by federal government officials after he wrote a
series of newspaper articles critical of the post-Civil War Reconstruction and the
resulting military rule of the South. The federal government justified McCardle’s
arrest on the ground that he violated several provisions of the Reconstruction
Acts. McCardle sought a writ of habeas corpus from a federal court in Mississippi
but was ultimately unsuccessful in challenging his arrest. McCardle then sought
appellate review of his habeas corpus petition in the United States Supreme Court,
relying on an 1867 congressional statute that permitted the Supreme Court to have
appellate jurisdiction over such matters. However, while the case was pending in
the Supreme Court, Congress passed a new law repealing the part of the 1867
statute that permitted Supreme Court appellate review of writs of habeas corpus.
President Andrew Johnson vetoed this legislation, but Congress immediately
overrode his veto and reinstated its repeal of the 1867 statute.
d. Holding: SCOTUS ruled that they no longer had jurisdiction to review writs of
habeas corpus because Congress had taken away their power of jxn.
e. Rule: Although the United States Supreme Court’s appellate jurisdiction is
derived from Article III of the Constitution, it is conferred subject to whatever
exceptions and regulations Congress chooses to make.

FEDERALISM
VII. Overview
a. Relationship between the federal government and the states; as well as the
relationships between the states
b. The Federal Government has limited enumerated powers through both substantive
and procedural means → Art. I state “herein granted” then continue to enumerate
subject matters in Sec. 8
c. What else limits Congress’s power?
i. States have plenary power of health and safety regulation of their
citizens
ii. Implications: Congress can’t just make laws under the Commerce
Clause, but they must find a substantive hook
iii. Procedural Constraints
d. Art. IV § 2: Supremacy Clause:

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i. The Constitution and Federal law are the supreme law of the land
ii. The states still retain some current jxn with Congress (contracts/torts)
but when federal and state law is differing but on point, the Federal Law
preempts state law
e. McCulloch v. Maryland (holding that the Second National Bank was
constitutional under the Necessary and Proper Clause à implied powers)
i. Facts: The Second National Bank was created to centralize bank power.
Maryland was taxing the 2nd National Bank in Maryland to protect state
interests.
ii. Maryland Claims: they had residual state power to tax the bank
because they were concerned the local economy would be impacted
iii. McCulloch Claims: the Necessary and Proper Clause allows for the
creation of the national bank (there was already a first national bank so
this was not a new grant of power); Congress was granted monetary
powers
iv. Holding: Any means necessary to achieve the ends that are outlined in
the Constitution are permitted; analogized the Second National Bank to
the making of Post Offices and Post Roads. Congress has the power to
incorporate a bank.
1. Congress has the constitutional power to charter the Bank of the
United States from general power to “tax and spend” for the
general welfare. The Necessary and Proper Clause functions to
expand, not limit, Congress’s enumerated powers. Congress
decided that chartering the Bank of the United States was a
necessary and proper method of raising revenue to carry out its
overall taxing and spending powers.
2. The Bank was created by federal statute. Maryland may not tax the
Bank as a federal institution because federal laws are supreme to
state laws. A federally created institution may not be inhibited
by state law. The Bank of the United States functions to serve the
entire nation. It is thus inappropriate for it to be controlled by one
part of the nation (i.e. Maryland) through a tax.
v. State’s Concern: to interpret the Necessary and Proper Clause so
expansively would lead to power being taken from the states from the
judge’s subjective understanding of what is necessary and proper
VIII. Preemption
a. Express Preemption: Congress explicitly displaces state law à will define the
scope of preemption in the act and it will take precedent
b. Implied Preemption:
i. Conflict Preemption: impossible to imply with both the federal and
state law, including violation of the broad purposes of the law
ii. Field Preemption: Congress chooses to regulate a subject exclusively
by federal law (if you are State wanting to uphold state law, they would
argue that the law falls outside of the field)
c. How to defend conflicting state law?
i. State should attack validity of the law first

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ii. Court does not have power to hear claim

iii. No power for Congress to pass the law
iv. Finally, there is no preemption in this case
d. Preemption v. Dormant Commerce Clause
i. Preemption: there are express laws on the books
ii. Dormant Commerce Clause: Court infers that the Commerce Clause
grants the federal power even if they not acted à preemption in areas of
inactivity
e. Article I § 10: Grants Congress certain powers not granted to states
i. Clause 1: States cannot make treaties, alliances, confederation, foreign
affairs relations, coin money, states cannot seize foreign/enemy ships
ii. Clause 2: States cannot impose duties on imports/exports unless what is
absolutely necessary; Congressional consent
iii. Clause 3: based on war powers of states (they can engage in war with
Congressional consent)
f. Silkwood v. McGee Corp.
i. Facts: Father brings state tort claim; District Court awards damages but
the 10th Cir. overturned the punitive damages because it was preempted
by state law (however, the federal Act does not speak on damages)
ii. Federal Gov. Claims: relies on the fact that nuclear energy is a
preempted FIELD by state law; Atomic Energy Act is more about
licensure. Agrees with the 10th Cir. findings.
iii. Holding: 10th Cir. was overturned, and the state law was not field
preempted by federal law. The Federal Law only discussed regulations
on nuclear energy, not the damages claim. The court relied on previous
acts passed by Congress to show that preemption was not found.
1. Counter-Argument: Punitive damages are used as an incentive
that is used as a whole takeover of a field
iv. Blackmun/Powell Dissent: Punitive damages are fines that lead to
regulation à Congress has preempted the whole FIELD of nuclear
regulation therefore punitive damages are preempted by Congress. Field
preemption is a broad power.
IX. Dormant Commerce Clause: Even where Congress has no regulations, the States still
cannot regulate that area (it has already been preempted)
a. Art. I § 8 outlines the Enumerated Powers of Congress
i. The courts have interpreted these enumerated powers to have implied
powers under them (ex. To enact post offices and post roads would give
them the underlying powers to build post offices and roads) → the
question is how far does this power go?
b. Why is Congress allowed this power? à The Constitution grants Congress
exclusive power
c. Why does Congress not have EXCLUSIVE power over IC?
i. Art. I § 10 lays out what states cannot do; regulation of interstate
commerce is not on this list
ii. Congress does not HAVE to regulate commerce so the states could be
free to do so

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iii. Congress has tough procedural hurdles to overcome

iv. Intrusion on the federal structure
d. Gibbons v. Ogden (1824)
i. Facts: Ogden received a license under NY state law that purported to give
him the exclusive right to operate steamboats in NY waters. Gibbons sought
and obtained a similar license from the federal government, which Gibbons
used to compete with Ogden in the same water route that Ogden was using.
ii. Issue: If a state and Congress both pass conflicting laws regulating interstate
commerce, does the state law govern?
iii. Holding: the federal law preempts the NY state law (Gibbons won).
States have some power to regulate interstate commerce, IF there is no
federal law on the book; however, IC must be uniform.
iv. J. Johnson Concurrence: looked to the purpose of the Constitution
e. Cooley v. Board of Wardens
i. Fact: Pennsylvania passed a law requiring all ships entering or leaving the
Port of Philadelphia to use a local Pennsylvania captain, or to pay a fine
amounting to half the fee for a local pilot that went to support retired
Pennsylvania pilots.
ii. Issue: Whether Pennsylvania’s law requiring all ships entering or leaving its
port to use a local pilot or pay a pilot support fee is a constitutional
regulation of pilotage in general based on the Commerce Clause?
iii. Holding: Yes. While Congress has exclusive Constitutional authority to
regulate interstate commerce, foreign commerce and interstate commerce
can be separated into distinct categories to which different national and local
rules may apply. The fee is CONSTITUTIONAL because it is such a
minor impact (will not affect national/economic uniformity and not
facially discriminatory against other states)
f. Wabash v. Illinois
i. Fact: Wabash is a railroad company that charged differing rates to two
different companies for transporting goods over the same road from Illinois
to New York.
ii. Issue: Under the Commerce Clause, may states regulate subjects that
require a uniform national standard?
iii. Holding: No, according to the dormant commerce clause, just because
Congress has not acted in this area states may not regulate by setting
different rates. If each state were to set their own standards, all of IC
would be affected therefore allowing Congress to regulate in this area.
iv. Distinguish from Cooley:
1. The railroad impacted larger portions of the economy because it
goes into different states; the national economy was more
connected now than in Cooley so a national standard is need, more
people travel using the railroad; it is impossible to follow laws if
multiple states passed similar laws.
v. Concerns over holding:

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1. Congress has not passed regulation in this area so they might have
left it to the states (intended to leave the regulation to local
wisdom); Court will have to partake in a value-based judgments
g. State of Commerce Clause after Cooley and Wabash: states are not completely
barred from regulating interstate commerce except when the commerce affects the
national economy à adopted the “National Uniform Standards” test to judge
commerce clause violations
h. Dean Milk v. City of Madison
i. Fact: local ordinance to sell milk in Madison if it was pasteurized and
bottled within 5 miles of the city. Dean Milk challenged this regulation
as they were outside of this radius. The stated purpose of the regulation
was for safety and economic efficiency.
ii. Issue: Is a statute unconstitutional if it places an excessive burden on
interstate commerce?
iii. Holding: Yes, the stated safety interest was not compelling enough;
there were other less discriminatory alternatives to ensure safety.
1. Counterarguments: by the court relying on the fact that there are
other less discriminatory ways to ensure safety is to impose their
own policy preference on the issue. It can also be argued that state
and local officials understand safety regulations better than the
Courts or Federal officials. This was purely a local issue, merely
harming other Wisconsin milk distributors. The purpose of the
interstate commerce regulation is to stop discrimination against out
of state producers, not intrastate producers. The burden must then
be passed to the state to show strict scrutiny.
iv. Balancing Test Created by the Court:
1. Area involving the regulation of commerce
2. The party must show that the regulation is discriminatory or
burdensome
3. If discrimination is not overt then:
a. Is there a good reason for the discrimination? (is a
legitimate state interest being furthered by the
discriminatory regulation)
4. Are there less restrictive means available to further the state
interest?
i. Hughes v. Oklahoma (minnow case)
i. Fact: Responding to concerns over the loss of its natural minnow
population, Oklahoma passed a statute that prohibited the transportation or
shipment of natural minnows procured within the state for sale outside the
state. Hughes was charged under the statute as he engaged in the interstate
commerce of Oklahoma minnows to customers in his Texas-based
enterprise.
ii. Issue: Under the Interstate Commerce Clause, may a state regulate the
shipment of natural resources from within its border to other states?
iii. Holding: OK § is unconstitutional under the commerce clause because it
was NOT the least discriminatory method available. This could be

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Constitutional if it would pass the Dean Milk standard. The state has a
legitimate interest in protecting the ecological land, but there is a less
restrictive means available.
iv. Compare to Dean Milk: this is more discriminatory than Dean Milk
because it aligns with the state boundaries and is facially discriminatory
(expressly worse treatment for out-of-state people).
j. South Carolina v. Barnwell Bros
i. Fact: South Carolina passed a regulation prohibiting the operation on its
state highways of certain motor trucks and “semi-trailer” motor trucks that
exceeded width and weight limitations. For purposes of the weight limit, the
statute considered semi-trailer motor trucks, which were composed of two
pieces, as one single unit. Barnwell, an out-of-state trucking company,
brought suit in district court against the South Carolina Highway Dept,
challenging the South Carolina weight restrictions as an impermissible
restriction on interstate commerce.
ii. Issue: May a state enact legislation to regulate semi-trailer motor trucks on
its highways even though it might burden interstate commerce?
iii. Holding: Yes. According to precedent, the judiciary may strike down state
regulations that provide only a limited benefit to local businesses and, in
contrast, significantly burden interstate commerce. However, that is not the
case here. The law is not discriminatory against out-of-state trucks, but the
regulation could affect out-of-state but very insignificantly. The state law is
not too burdensome and the state interest is compelling enough. The law is
not legitimate if it is facially discriminatory. Did not balance the interest
because this is a legislative function.
iv. Distinguish from Hughes: the SC Law is discriminatory against all
trucks, not just out-of-state trucks; this case was in 1938 (before
interstate) so the state had in an interest in protecting the roads.
k. Southern Pacific v. State of Arizona à under the substantial burdens test
i. Fact: Arizona law limited the number of train cars that could be carried.
Not facially discriminatory, but most of the trains come from out of
state. However, the law applies to both in and out of state train cars.
ii. Issue: Is Arizona law restricting the length of trains passing through its
borders an unconstitutional limitation on interstate commerce?
iii. Holding: Yes, because there is a national impact, and a single authority
is needed. There were better ways to promote safety. There is no interest
of safety because you are just running more trains, so there is no real
interest in protecting safety.
l. Camps Newfound/Owatonna, Inc. v. Town of Harrison
i. Fact: Camps is a Maine nonprofit summer camp. The camp has not been
profitable in recent years. Maine allows a tax exemption for nonprofit
institutions incorporated in the state. However, nonprofit institutions that
primarily benefit nonresidents only qualify for a limited tax benefit, if they
do not charge more than $30 per person for their services. Ninety-five
percent of the camp’s attendees are nonresidents of Maine. Since the camp
charges $400 per week for its summer camp, it is not entitled to any tax

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exemption in Maine. The camp challenges Maine’s tax exemption on

grounds that it discriminates against nonresidents in violation of the dormant
Commerce Clause.
ii. Issue: Does the nonprofit nature of an enterprise necessarily exclude its
services from the definition of interstate commerce?
iii. Holding: No, the property tax exemption violates the dormant
commerce clause because it was facially discriminatory. This expands
the dormant commerce clause because this included a service and not
commerce in the clause. Essentially the court was concluding that the
Commerce Clause seems to just regulate not only commerce and articles
of trade. Commerce means the same thing in both the CC and the DCC.
Congress could have regulated this activity under the CC.
1. Ways in which this holding expanded the Commerce Clause
through the Discriminatory against ISC Test:
a. Campers are considered articles of commerce
b. This is a non-profit, not a normal business
c. This was also a property tax, not considered to be an article
of commerce
d. The tax is internal to the state that the residents have to pay
yearly
2. Counterarguments to holding: Stevens concludes that just by
participating or providing a an interstate commerce good, the camp
is subjected to the Interstate Commerce Clause
iv. Scalia Dissent: DCC should not apply. States must be able to benefit
their citizens. Tax exemption is the same thing as welfare benefits.
v. Thomas Dissent: DCC has no textual basis in the Constitution. Takes
issue with the legitimate state interest and more reasonable alternative
test created in Dean Milk because this allows for too much judicial
discretion. The doctrine is unworkable, unwise, and inconsistent with the
text. The Dormant Commerce Clause is predicated on faulty theories
because the constitution does not offer Congress the exclusive grant of
power to regulate commerce and silence is not preemption.
m. Prudential Insurance v. Benjamin
i. Fact: Prudential is an insurance company incorporated in New Jersey but
conducts business in South Carolina. South Carolina imposes a tax on
foreign insurance companies doing business within South Carolina,
regardless of the interstate or local nature of the business. Prudential
challenged this tax, arguing that it violated the dormant Commerce Clause.
ii. Insurance Co. Arguments: arguing under the old standards of DCC.
iii. Issue: May Congress authorize the states to pass laws that would otherwise
violate the dormant Commerce Clause?
iv. Holding: Yes, the SC law is not a violation of the of DCC; however,
Congress does the power to regulate the buying and selling of insurance.
Relied on Paul v. Virginia (Insurance policies were not considered
commerce subject to the DCC) and the McCarran Act (allows for
Congress to regulate out-of-the-state insurance where the state does not

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regulate). If Congress was regulated in the same way that state power
may regulate, it would strip Congress of power. DCC is in no way a
limitation on Congressional power; the only limit is the definition of
ISC.
n. Gibbons v. Ogden
i. Fact: Ogden was given a monopoly over a shipping channel under NY
state law. Gibbons was granted a power to use the shipping channel
under federal statute. Ogden claims that navigation is not commerce; it
is just the buying and selling of goods.
ii. Issue: Does water navigation fall under commerce?
iii. Holding: Yes, Navigation falls under the commerce clause because
under Art. 1 § 9, commerce is commercial intercourse. Ports and
waterways clearly refer to the movement and navigation of waters.
iv. Issues to raise when challenging a state law:
1. Navigation is not commerce and outside of Congressional power
2. The state is not preempted and can coexists together
o. U.S. v. E.C. Knight
i. Fact: Concern with the purchase of the Pennsylvania sugar refineries.
The sugar industry would be too consolidated. There would less
competition and higher prices. The Sherman Anti-Trust Act of 1890 that
criminalized the creation of the monopolies. E.C. Knight argues that the
Anti-Sherman Act if too broad and the manufacturing of sugar in one
state is outside of the power of the commerce clause. U.S. argues that
even though the manufacturing is locally situated it will enter into the
stream of commerce and therefore affect national commerce. (Counter:
this would give Congress the power to regulated anything that enters
into the stream of commerce and Congress cannot regulate foreign
nations manufacturing so they cannot regulate states)
ii. Issue: Can congress regulate a purely local activity?
iii. Holding: Congress does not have the power to regulate here because it
is manufacturing, not commerce. This was a constraint on trade.
iv. Harlan Dissent: There is no commerce clause violation because it is not
primarily local issue. There is a factual disagreement over the scope of
the manufacturing. There is no distinction between manufacturing and
commerce.
p. Shreveport Rate Case (1914)
i. Rule: Congress may regulate operations in all matters having a close
and substantial relation to interstate traffic, to the efficiency of interstate
service, and to the maintenance of conditions under which interstate
commerce may be conducted upon fair terms.
ii. Fact: The ICC established rates for transporting goods from LA to TX.
The ICC is claiming the power to make uniform rates. The RR claims
that the interstate rate should not be federalized as it would be hard to
reconcile the E.C. Knight case (distinction: sugar factory is in PA and
the railroad is moving across state lines)

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iii. Issue: May Congress use its Commerce Clause powers to regulate
activities occurring fully within a state when those activities have a
substantial effect on interstate commerce?
iv. Holding: Yes. The authority given to Congress to regulate interstate
commerce under the Constitution is absolute. It necessarily includes the
right to enact all appropriate legislation and adopt measures to protect
and further interstate commerce. In this case, Congress regulated the
purely intrastate activities of the railway because those activities had a
close and substantial relation to its interstate activities. Whenever
interstate and intrastate transactions of carriers are so related that the
government of the one involves the control of the other, Congress, and
not the state, is entitled to issue the final and dominant rule that regulates
such activities.
q. Champion v. Ames
i. Fact: Congress enacted a statute that prohibited the buying and selling
of lottery tickets across state lines. Champion was caught selling lottery
tickets across state lines. Champion challenged the indictment by stating
that Congress does not have the power to completely prohibit commerce
but only regulate it.
ii. Issue: Does the trafficking of lottery tickets across state lines constitute
interstate commerce that Congress may prohibit under the Commerce
Clause?
iii. Holding: Yes. Can absolutely prohibit under the power to regulate; they
can regulate on the basis of morality. Congress has the sole authority to
call lottery tickets harmful and may prohibit them.
iv. Distinction between this and E.C. Knight: Tickets were going across
state lines unlike the regulation of sugar manufactory that was in one
place.
r. Hammer v. Dagenhart
i. Fact: Congress passed the Keating-Owen Act which prohibited goods
made by children under a certain age from being sold in interstate
commerce. Dagenhart (plaintiff) brought suit on behalf of himself and
his two sons, who were minor children employed in a cotton mill in
North Carolina, against Hammer (defendant), a United States attorney,
alleging that the Act was an unconstitutional exercise of Congress’s
Commerce Clause Power.
ii. Issue: May Congress regulate the interstate commerce of goods
produced in factories with child labor?
iii. Holding: Congress is overstepping their power; regulating child labor is
up to the state. Congress may not use its Commerce Clause power to
regulate child labor in the states as this is a purely local matter. Congress
attempt to regulate interstate commerce was for the underlying purpose
of stopping child regulation rules, but child labor laws are a purely local
issue.
iv. The court has not accepted the affects doctrine by the early 20th century.
s. Carter v. Carter Coal (1936)

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i. Fact: Congress passed the Bituminous Coal Conservation Act (BCCA)

to create a national commission of coal miners, coal producers, and
private citizens to help regulate the coal mining industry by establishing
standards for fair competition, production, wages, hours, and labor
relations. The BCCA delegated to the commission the power to fix the
minimum and maximum prices of coal at every mine in the United
States. Carter informed his coal company to not follow this regulation.
The issue addresses the coal industry writ large. The attempt to regulate
max hours and minimum wages seems like what the court did in
hammer.
ii. Issue: May Congress regulate a purely local act under its Commerce
Clause powers?
iii. Holding: No, Congress may not regulate a purely local act under its
Commerce Clause powers. Actions here extend past Congressional
authority. The effect on commerce is indirect; this is an
employer/employee relationship and is to local for Congress to regulate.
commerce is defined as “intercourse for the purposes of trade” between
and among the several states. Commerce includes all aspects of trade
relating to the sale and transportation of commodities. However,
commerce has not been defined to include the manufacturing and
production of commodities as it occurs within an individual state. In this
case, the manufacturing of coal at local mines and issues pertaining to
the wages, hours, and organizing of local employees are local issues,
affecting only the particular state in which these activities take place.
iv. Background: FDR threatened to pack the court after this because was
striking down his bills. This would be constitutional but is out of the
norm and unwise.
t. NLRB v. Jones (similar to the Hammer case)
i. Rule: Congress may regulate labor relations under its Commerce Clause
power because labor relations have such a close and substantial
relationship to interstate commerce that their control is essential to
protect that commerce from burdens and obstructions.
ii. Fact: The NLRB was to enforce federal labor standards. Jones
discrimination against union members and Jones said NLRB is
unconstitutional because it is too broad.
iii. Issue: May Congress regulate labor relations under its Commerce
Clause power to regulate interstate commerce?
iv. Holding: Yes, the power to regulate interstate commerce is plenary and
is vested solely in Congress. This is within the power of Congress if the
effect on interstate commerce is direct. because of the potential for harm
to the stream of interstate commerce stemming from unfair labor
practices and disgruntled employees, it is within Congress’s plenary
power under the Commerce Clause to regulate labor relations. The
decision of the lower courts is reversed.
v. Dissent: The majority has tossed the idea of directness out the window.
They should not be able to regulate this area of labor relations.

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u. U.S. v. Darby
i. Fact: Minimum wage maximum hours is set by federal legislators and is
punished through criminal changes. Congress passed the Fair Labor
Standards Act (FLSA) to prevent the introduction and shipment of goods
produced under labor conditions that failed to meet federal standards
from entering the stream of interstate commerce. Darby failed to meet
these standards and the US brought suit against him.
ii. Issue: May Congress prohibit the shipment of goods in interstate
commerce made by workers in unfair employment conditions and the
employment of such workers in manufacturing goods for interstate
commerce?
iii. Holding: Yes, Congress may regulate the labor standards involved in
the manufacture of goods for interstate commerce and may exclude from
interstate commerce any goods produced under substandard labor
conditions. The Court overruled Hammer v. Dagenhart. The power of
Congress over interstate commerce is absolute and is subject only to
limitations prescribed by the Constitution. The present holding has no
effect on the Tenth Amendment’s assertion that all powers not given to
the federal government are reserved to the states. This was not a power
that was reserved to the states under the 10A (construed the power of the
10A narrowly). Explicitly used the affectation doctrine to uphold the
regulation (it is okay for Congress to regulate intrastate commerce that
commerce will affect interstate commerce taking an aggregate of
factors). The legislation was reasonably adapted with legitimate ends à
rational basis standard.
v. Wickard v. Filburn (1942)
i. Rule: Congress may regulate local activity if that activity exerts a
substantial economic effect on interstate commerce.
ii. Fact: FDR put wheat subsidies in place to control wheat prices. Filburn
grew 239 extra bushels of wheat for private consumption and the he
filed suit against Wickard to be enjoined from enforcing penalties.
iii. Issue: May Congress regulate, under the Commerce Clause, the
production of wheat designed wholly for individual consumption and not
for sale in commerce, interstate or otherwise?
iv. Holding: Yes, when looking at the aggregate (if all the farmers were to
do this) then this purely local activity would impact interstate commerce
would be impacted and wheat prices would be affected.
v. Argument for Filburn: The wheat is not commerce (look to E.C.
Knight and the fact that an indirect effect is not enough). He is just
growing a garden for private consumption and never intended to put this
into the stream of commerce. He is being punished for abstaining from
commerce.
vi. Does the wheat really affect commerce?
1. Yes, if it is viewed in the aggregate. This was not a trivial
regulation, but a regulation that impacts a huge economic market.
This was a regulation related to business and industry.

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2. No, this effect is too attenuated.

w. Heart of Atlanta Motel v. U.S.
i. Rule: Congress may enact regulations that prevent racially
discriminatory policies in hotel accommodations because of the negative
effects of those policies on interstate commerce.
ii. Fact: In 1964, Congress passed the Civil Rights Act (CRA). Title II of
the CRA forbids racial discrimination by places of public
accommodation such as hotels and restaurants. The Heart of Atlanta
Motel, Inc. (plaintiff) in Atlanta, Georgia advertises to and hosts
primarily out-of-state guests. The motel practices a policy of refusing to
rent rooms to African Americans.
iii. Issue: May Congress enact the Civil Rights Act as a measure to regulate
interstate commerce?
iv. Holding: Yes, Under the Commerce Clause, Congress has the power to
remove obstructions and restraints to interstate commerce. The
unavailability to African Americans of adequate accommodations
interferes significantly with interstate travel. Moreover, evidence shows
that racial discrimination has a disruptive and substantial and harmful
effect on commercial intercourse (aggregate commerce).
v. Additional Support: 13A (grants Congress additional authority in § 2)
and 14A (courts cannot deny due process of law enforced by § 5)
1. The necessary and proper clause attaches to 13A §2 and 14A §5.
2. Congress has the explicit power to enact regulation to prohibit
slavery.
3. 14A is mor directed towards the states; there must be state action
for the 14A to be triggered. In Heart of Atlanta, Congress used the
CC instead of the 14A because the CC has more hooks to regulate
interstate commerce.
vi. Distinguish from Darby: The commerce here in question is different
from the labor practices in Darby. The purpose of Darby was to regulate
morals rather than a good.
x. Katzenbach v. McClung
i. Rule: Congress may regulate the discriminatory policies of restaurants
through Title II of the Civil Rights Act if those policies have a
substantial effect on interstate commerce.
ii. Fact: In 1964, Congress passed the Civil Rights Act (CRA). Title II of
the CRA forbids racial discrimination by places of public
accommodation such as hotels and restaurants. The McClungs
(plaintiffs) owned and operated Ollie’s Barbecue in Birmingham,
Alabama and refused to serve African American customers in their
dining area. Approximately half of the food served by the restaurant
moved in interstate commerce.
iii. Issue: May Congress regulate the discriminatory policies of restaurants
through Title II of the Civil Rights Act if those policies have a
substantial effect on interstate commerce?

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iv. Holding: Yes, looked to the legislative history of the CRA to find that
restaurants was an area in which they attempted to curb racial
discrimination. By not serving Black folks fewer interstate goods are
traded and interstate travel is obstructed. Congress has a rational basis
for passing this law under the Commerce Clause.
y. U.S. v. Lopez
i. Rule: Congress may not, pursuant to its Commerce Clause powers, pass
a law that prohibits the possession of a gun near a school.
ii. Fact: In 1990, Congress passed the Gun-Free School Zones Act
(GFSZA), making it a federal offense "for any individual knowingly to
possess a firearm in a place that the individual knows, or has reasonable
cause to believe, is a school zone." Lopez (defendant), a student who
brought a gun to his high school, was confronted by school authorities,
arrested, and charged with violating the GFSZA.
iii. Issue: May Congress, pursuant to its Commerce Clause powers, pass a
law that prohibits the possession of a gun near a school?
iv. Holding: No, while Congress has broad powers under the commerce
clause, this power does not extend that far. There is no jurisdictional
hook in this statute. GFSZA does not regulate channels or
instrumentalities of commerce. The question then becomes: does the
activity substantially affect interstate commerce? The mere carrying of
handguns (not the buying or selling) in a school zone in no way affects
commerce, either substantially or otherwise. This is not analogous to
Wickard v. Filburn.
v. Kennedy Concurrence: the law as passed upsets the balance of
federalism
vi. Thomas Concurrence: First principle look at the Commerce clause à
the text does NOT support the substantial effects test. The CC can only
be used when there is buying and selling of goods that cross state lines.
Under Thomas’s view, Wickard would have come out differently.
vii. Stevens Dissent: the guns equate to commerce because there pieces
were sold in interstate commerce.
viii. Souter Dissent: There is no impact to the system of federalism from this
regulation.
ix. Breyer Dissent: We should only apply the rational basis test (legitimate
government interest using reasonable means); under the rational basis
test the law would stand.
z. U.S. v. Morrison
i. Rule: (1) Congress does not have the authority under the Commerce
Clause to regulate violence against women because it is not an economic
activity. (2) Under § 5 of the Fourteenth Amendment, Congress may
only regulate the discriminatory conduct of state officials, not private
actors.
ii. Fact: Congress passed the Violence Against Women Act, did not outline
any jurisdictional limits, and provided civil remedies under the
commerce clause. Christy Brzonkala, a female student at Virginia Tech

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University, was allegedly assaulted and raped by Antonio Morrison

(defendant) and James Crawford. Morrison was temporarily suspended
from school, but a state grand jury did not find enough evidence to indict
him. Brzonkala and the United States government (plaintiffs) brought
suit against Morrison, Crawford, and Virginia Tech under the VAWA in
federal district court. Morrison challenged the VAWA as an
unconstitutional exercise of Congress’s Commerce Clause powers.
iii. Issue: May Congress, pursuant to its Commerce Clause powers,
create civil remedies for victims of gender-based violence to sue their
attackers in civil court?
iv. Holding: No, gender-based violence that occurs is not enough to affect
interstate commerce. The effect was too attenuated and not direct
enough. There must be more than an indirect fact.
aa. Gonzales v. Raich (expansion of CC)
i. Rule: Congress may regulate the use and production of home-grown
marijuana as this activity, taken in the aggregate, could rationally be
seen as having a substantial economic effect on interstate commerce.
ii. Fact: Congress passed a new law that placed weed into the illegal
substance category. CA passed a new law that legalized the use of
medical weed. Raich used weed legally in California for medical
purposes. This was an as-applied to the facts of the case challenge, not a
facial challenge. Raich was facing criminal charges.
iii. Issue: May Congress regulate the growth and consumption of this
homegrown weed allowable under state but not federal law?
iv. Holding: Yes, applying the Wickard v. Filburn analysis, Congress has
the power to regulate purely local activities that are part of an economic
class of activities that have a substantial effect on interstate commerce.
This will too easily enter into the stream of commerce, expanding the
illegal weed market.
1. This would not have passed under the Gibbons v. Ogden because
the weed was home grown and never entered into the channels of
commerce, nor under the earlier affectation doctrine.
v. Notes: The Commerce Clause doctrine analysis is not different when
there is criminal or civil penalties at stake.
vi. Scalia Concurrence:
1. No power under the Commerce Clause to regulate, but the
Necessary and Proper clause can be used to regulate this area.
States that there must be a real problem that has a real connection
to the interstate commerce.
vii. Thomas Dissent: They should be able to grow the weed. Congress has
no power to regulate this purely local and private activity.
bb. National Federation of Individual Business v. Sebelius
i. Rule: Distinct from Wickard v. Filburn, Congress cannot mandate that
people partake in commerce.
ii. Fact: underlying scheme of the ACA would require all people to have
health insurance or face a fine from the IRS. There is a guarantee issue

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provision and a community rating provision within the ACA. Finally,

there is the induvial mandate that would require all people to have
insurance. Congress used both the Commerce Clause and the Necessary
and Proper Clause to pass these.
iii. Issue: Does abstaining from commerce affect interstate commerce?
iv. Holding: For the individual mandate, Congress does not have the power
under the CC or the NP to enact this. Abstaining from participating in
the market does not qualify as commerce that can be regulated.
cc. Commerce Clause Doctrinal Development
i. Traditional Rule: Congress can regulate interstate commerce and its
channels and instrumentalities
ii. The 1930s: Expansion of the Affectation Doctrine à if there is an
intrastate economic activity that substantially effects interstate
commerce allows for Congressional regulation (Darby)
1. Wickard v. Filburn: the cumulative effects doctrine paired with the
affectation doctrine à looking at the intrastate economic activity
in the aggregate would yield a substantial effect of the interstate
commerce
dd. Commerce Clause Regulations that are not acceptable:
i. Lopez & Morrison: there was no tenable effect on interstate commerce;
there was no jurisdictional requirement in the statute
1. Correction: Congress revised the statute to include a jurisdictional
limit which made it okay under the affectation and cumulative
effects doctrine; for Morrison Congress must be able to show that
the violence against women was indeed hindering interstate
commerce
ee. Issue Spotting List
i. How broad is the market that is attempting to be regulated? à the more
board the more opportunities for touches on interstate commerce
ii. Is this intrastate or interstate commerce?
iii. If this is interstate commerce, is there a substantial effect on interstate
commerce? à Congress can regulate if there is a substantial impact.
iv. Does the statute include a jurisdictional hook for interstate commerce?
(Lopez and Morrison)
v. Is there commerce or is there an abstention from commerce? (creating ≠
regulating) (NFIB v. Sibelius)
X. Necessary and Proper Clause (there is a very fuzzy line between the Commerce Clause
and the Necessary and Proper Clause)
a. Traditional View: Congress must use a textual hook in Art. I § 8 to enact
something under the Necessary and Proper Clause
b. Non-textualist View: The Necessary and Proper Clause allows for Congress to
have greater power outside of Art. I § 8
c. Expansive View: This Clause gives Congress more discretion to act; the clause is
separated and listed as another power; there is an “and” listed in the section before
the clause

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d. Limited View: “and” implies that the laws must be BOTH “necessary” and
“proper” in order to be enacted → that is a high bar
i. If the power is delegated to another branch, then Congress cannot take
that power
ii. The length and text of Art. I show that the powers were to be
enumerated
e. Limits on the Necessary and Proper Clause:
i. The end must be legitimate
ii. Within the scope of the Constitution
iii. Means must be appropriate and plainly adapted to that end, which are
not prohibited by the Constitution
iv. Consistent with the letter and spirit of the Constitution
v. Congress must have a hook with an enumerated power to use the
Necessary and Proper clause
vi. May only be used on enumerated powers (Sebelius)
vii. Must be reasonably adapted to its ends (McCulloch) à this equips
Congress with the power to carry into effect other enumerated powers
f. Not a General Welfare clause:
i. There would be no need for the rest of the Constitution if this was an
enumerated power
ii. The terms and text of the rest of the Constitution and Art. I are
narrowing
iii. 10th Amendment (Less persuasive): grants the remaining non-
enumerated power to the states and the people
g. Relationship between the Necessary and Proper Clause and the Commerce
Clause
i. The Necessary and Proper Clause is used as a gap filler between the
Commerce Clause the ability to apply sanctions or penalties for
regulatory purposes
XI. Privileges and Immunities Clause (Art. IV § 2, Cl. 1)
a. General Meaning of the Clause
i. Looking to the work “all,” this is a more inclusive clause than that in the
Fourteenth Amendment as the 14A says privileges OR immunities
b. How to derive meaning?
i. Look at the historical meaning
ii. Do a purely textualist review of the clause
iii. Look at the entirety of the phrase
1. Does “of citizens” have meaning?
2. Look at other places where this phrase is found in the Constitution
iv. Look at the whole text of the Constitution
c. Baldwin v. Fish and Game Commission of Montana
i. Fact: Montana imposed two separate hunting licenses for in and out of
state residents. This facially discriminatory licensing scheme favors in
state residents.
ii. Issue: Is this licensing scheme constitutional?

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iii. Holding: Yes, the state can favor in state residents. Hunting is for
recreation and not for livelihood, so the burden is much lower. Elk
hunting is not a right guaranteed by the Privileges and Immunities
clause.
iv. Distinguish from Minnow Case: the burden that the Montana statute
places is much lower because obtaining a hunting license is not a
fundamental right. In OK Minnow case, there is NO minnow
transportation, whereas in Montana out of state residents just have to pay
a little more.
d. Supreme Court of New Hampshire v. Piper
i. Facts: NH does not allow for out-of-state employees to practice in NH.
Piper lives within 400 yards of the NH boarder in Vermont and wants to
practice law in NH.
ii. Issue: Is the discriminatory policy of not allowing out-of-state residents
to practice in NH unconstitutional?
iii. Holding: This discrimination is unconstitutional. Piper should be able to
practice law in NH. NH cannot discriminate against state residents from
doing business. This does not pass the compelling interest test. States
that the ability to work is a fundamental right and falls under the
Privileges and Immunities clause. There could have been a more tailored
government interest to achieve their ends.
e. Limitations on Congressional Power
i. Regulate: this is a broad term that is not limited
ii. Among several states deals with activity that crosses boarders, not just
on boarders
iii. Internal commerce of a state is regulated to states
XII. Congressional Taxing Power (Art. I § 8, Cl. 1)
a. Power to Tax: Congress has the power to impose and collect taxes and the
Necessary and Proper Clause would allow Congress to determine how to collect
those taxes.
i. The tax must have the specific ends of paying off debts and providing
for the common defense and general welfare of the United States à
must be a revenue raising tax, not a penalty
ii. “Uniform throughout the states” à this only applies or duty, imposts
and excises NOT TAXES
1. Duty and Imposts: a tax on imports must be the same (no federal
favoritism)
2. Excise: tax on manufactured goods
iii. 16A grants Congress the power to tax income
iv. There is no subject-matter jurisdictional limit on the power to tax
v. This is a very vast power as it can preempt state laws
b. Limitations on the Power to Tax
i. § 7: Procedural Limitations on the power: revenue bills must be raised in
the House à why is this?

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1. There are more representatives, they are elected every two years so
there is more accountability, larger body. Taking people’s money
is a big deal.
ii. § 9: Direct Taxes must be laid proportional to the census; no duties on
interstate commerce
iii. § 9 Cl. 4: Capitation (head tax)
1. This keeps the federal government from burdening one satte over
another, ensures that all states are treated the same regardless of
population,
iv. § 9 Cl. 6: states cannot be favored
c. Differentiations between the Commerce Clause, Taxing Power, and
Necessary and Proper
i. CC: limited because regulation can only attach to commerce that relates
to interstate
ii. Taxing power: no interstate commerce limit; less restricted in how it can
be applied.
iii. Necessary and Proper is constrained to the “foregoing powers”
indicating that it can only be applied to the enumerated powers
iv. TEST TIP: ANALYZE THE ISSUE THROUGH BOTH TAXING
POWER AND COMMERCE CLAUSE
d. Differing Views on the Taxing Power from the Framers
i. Hamilton: not limited to the enumerated powers
ii. Madison: power is constrained to the enumerated powers
e. Child Labor Tax Case (Bailey v. Drexel Furniture Co.)
i. Rule: Congress may not attempt to regulate through a tax a matter that is
reserved to the states by the Tenth Amendment to the Constitution.
ii. Fact: Congress passed the Child Labor Tax Law which constituted a ten
percent tax on the profits of any company using child labor. The goal of
the regulation was to stop child labor. Congress had previously tried to
pass legislation stopping child labor and was struck down in the
Hammer case. Drexel challenged the law on the ground that it was an
unconstitutional attempt by the federal government to regulate child
labor in the states–a function exclusively reserved to the states under the
Tenth Amendment to the Constitution.
iii. Issue: Whether the Child Labor Tax Law is an unconstitutional effort by
Congress to regulate the use of child labor, a power exclusively reserved
to the states by the Tenth Amendment.
iv. Holding: This was an unconstitutional tax under the taxing power
because it was a penalty, not a tax. There was a scienter requirement and
the Secretary of Labor, not the IRS, collected the taxes. This was an
imposition of 10% of revenue. Congress cannot regulate taxation power
by using it to impose penalties.
f. U.S. v. Kahringer
i. Rule: A revenue-producing tax is not invalid because the purpose of the
tax is regulatory.

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ii. Fact: The Revenue Act of 1951 taxes people in the business of
accepting wagers and requires them to register with the government to
pay the tax. Kahriger (defendant), who was involved in illegal wagering
activities, failed to register and pay the tax. Kahriger challenges the Act
on the grounds that its regulatory purpose violates the Tenth
Amendment.
iii. Issue: Is a revenue-producing tax invalid if the purpose for the tax is
regulatory?
iv. Holding: No, the law was upheld and the tax remained because it was
operating to generate revenue. The court will not take the purpose/intent
into account.
v. Can a tax ever be a penalty after this case?
1. Yes, as long as there is the revenue it would be okay. If the “tax” is
so egregious that no one will partake in that activity, then it is a
penalty and not a tax.
g. NFIB v. Sebelius (ACA Case)
i. Holding: the shared responsibility payment provision is Constitutional
under the taxing power; whereas the individual mandate portion of the
ACA was unconstitutional. The provision was not egregious, raised
revenue, no scienter requirement, and was collected by the IRS. Ignored
the fact that the ACA actually used the term “penalty” claiming that it
was not a penalty in operation.
ii. Issue 2: Can Congress tax an omission of an act? Can you tax
inactivity?
iii. Holding 2: No, this is not a direct tax because it is not taxing property or
a capitation. There must be limits in that the Court cannot wield policy
making power generally.

h. Penalty or Tax?
Penalty Tax
• The “tax” is so outrageous that • Must actually raise revenue
people will not partake in the • No scienter requirement (Child
behavior as to avoid it. Labor Tax Case)
• There is a high degree of • Collected by the IRS (Child Labor
deterrence/incentive to not partake Tax Case)
in an activity (NFIB v. Sebelius) • There is a positive end
• Clearly is punishing wrongful
behavior
• The more narrowly tailored the tax,
the more likely it is a penalty
• The more outrageous the tax is, the
high likelihood it is a penalty

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(Child Tax Labor Case à would

take 10% of all net profits)

i. Issue Spotting List for Taxing Power

i. Does the tax raise revenue or is it a penalty? à if it is a penalty than the
tax is no longer under the taxing power because they are backdoor
regulating; if it raises revenue, it is constitutional.
ii. How to determine if it is a penalty?
1. It is not reasonably raising revenue
2. Is the tax so egregiously high that it disincentives the behavior so
no one does it?
3. Is there a scienter requirement?
4. Who collects the taxes?
5. A tax has a positive end, a penalty punishes unlawful behavior.
6. Does it appear more regulatory in nature, that they want the “tax”
so high so people don’t partake in that activity.
7. Last resort: What were the motives of Congress?
8. How narrowly tailored is the tax? à the more narrowly tailored
the tax is, the more likely it is a penalty.
XIII. The Spending Power (Art. I § 8 Cl. 1)
i. “To pay debts and provide for the common defense and general welfare
of the US.”
ii. The comma, over the use of a semi-colon, would indicate that this is
NOT an enumerated power; while it is not an enumerated power, the
other enumerated powers limit the general welfare clause.
b. Relation to the Necessary and Proper Clause
i. The spending power is located in a place in the Constitution where broad
powers are located. The N&P Clause might already give Congress
spending power.
c. U.S. v. Butler (1936)
i. Rule: Congress may not use its taxing and spending powers to obtain an
unconstitutional result, such as invading the reserved rights of the states
under the Tenth Amendment.
ii. Fact: In 1933, Congress enacted the Agricultural Adjustment Act
(AAA) to allow the Secretary of Agriculture to set limits on the
production of certain crops and tax farmers that produced in excess of
those limits. The AAA also provided grants to farmers to control their
production of crops and thus regulate prices.
iii. Issue: Was this a constitutional tax under the taxing power?
iv. Holding: No, Any congressional power to tax and spend is limited by
Tenth Amendment state sovereignty concerns. The AAA violates state
sovereignty by seeking to invade states’ rights to regulate and control
their own agricultural production. Since Congress has no power to
regulate and control agricultural production, it follows that Congress
may not indirectly accomplish that end through its taxing and spending

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powers. The Court embraced the Hamiltonian view that the

confinements of the power are in the clause itself.
v. Madisonian View: the spending power is limited by the enumerated
powers. It is merely a reference to the other enumerated powers in the
subsequent clauses.
vi. Hamiltonian View: The clause confers a power separate and distinct
from the latter enumerated clauses. The only meaningful limit is that the
spending power must only be used for the welfare of the public.
d. South Dakota v. Dole
i. Rule: The receipt of federal funds may be conditional if the exercise of
the spending power is for the general welfare, the conditions are
unambiguous, the conditions are related to a federal interest in a
particular national project or program, and the conditions do not violate
any other constitutional provisions such as the Tenth Amendment.
ii. Fact: A South Dakota law allowed for certain alcohols to be consumed
starting at 19. Congress then implemented an act that withheld certain
highway funds to states that do not have a drinking age of 21.
iii. Issue: May Congress withhold federal funds to states that do not comply
with federally imposed conditions?
iv. Holding: Yes, this is not a pre-emption of state law because the state
can choose to not take federal funding. Even though it is clear that
Congress wants to stop drinking under the age of 21, this is an okay use
of the spending power because Congress included a condition. This does
not impede on the 21A.
e. Dole Factors for the Spending Power
i. Power must be derived from the general welfare (will defer to the
determination of Congress on this)
ii. The condition must be unambiguous
iii. The regulation must be related to the federal interests in particular
national projects or programs.
iv. Other Constitutional provisions may provide an individual bar to the
Conditional grant of federal funds (relates to the Butler coercion test)
v. BONUS PRONG: The spending power must not violate other
constitutional powers or be coercive.
f. Court derives these limitations from:
i. Uniformity requirement in the text
ii. Fairness issues (unfair to withhold funds if the act is unclear)
iii. Must follow the general federalism
iv. When Congress gives the benefit of money it is not coercion if states can
voluntarily give up money through a second condition.
g. NFIB v. Sebelius (Congress cannot use the spending power in a coercive manner)
i. Fact: Medicaid expansion provision would increase Medicaid to cover
all individuals under 65 with incomes below 133% of the poverty line. If
the states refused there would be a loss of Medicaid funding.
ii. Holding: The act of Congress was outside the Constitutional authority
of the spending power. By requiring that all people be covered under the

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act is coercive because there is an insufficient connection, and it is too

burdensome on the states. The states would not refuse the program
because so much of the state funding is here (upwards of 20% of the
state budgets)
iii. Differentiate from Dole: there was much less on the line in Dole with
only 5% of the Highway budget being affected; this would affect 20% of
the entire budget.
iv. Ginsburg Concurrence: Congress has discretionary power to determine
general welfare à the Court should defer to Congress’s understanding.
There is no coercion test offered in Dole.
v. Thomas Dissent: Improper coercion from Congress’s enactment of the
law. This falls outside of the spending power. This is an invasion of state
power and federalism.
1. This differs from Chief Justice Roberts because Roberts states that
if a condition was attached to the spending it would be okay,
Thomas and Scalia say it would generally not be okay.
XIV. WAR POWERS (Art. 1 § 8)
a. Congress has the power to declare war and raise and support armies.
b. Differentiate from Executive war powers in Art. 2 § 1, Cl. 1, § 2 Cl. 2-3, § 3:
The unilateral power of the president means that he can act faster, more
efficiently, and in secretly. The power of Congress to to declare war does not limit
the executive power.
c. Woods v. Cloyd W. Miller Co. (1948)
i. Rule: The war power of Congress activated by armed conflict may
extend beyond the cessation of hostilities to permit Congress to address
the negative effects of war.
ii. Fact: Title II of the Housing and Rent Act of 1947 permitted Congress
to regulate rents pursuant to its war powers which were activated by the
start of World War II. The goal of the act is to clean up the economy
from the impacts of war.
iii. Issue: Can Congress impose a rent control policy under the war powers?
iv. Holding: Yes, There is no strict limit to what “war times” means.
Congress may constitutionally control rents even after the cessation of
World War II hostilities because doing so is necessary to remedy the
ongoing housing crisis caused by the war. The war power of Congress
activated by armed conflict may extend beyond the cessation of
hostilities to permit Congress to address the negative effects of war. This
war power may not extend indefinitely but may continue as long as a
significant need exists because of the war that is capable of being
addressed by congressional action. There was no formal declaration of
peace (used as a limiting principle).
v. Note: The president could not enact this power; this was allowed under
Congress because the Act went through the political process.
vi. Jackson Concurrence: The country is technically in a state of war.
There is more than a general economic connection in this.
d. Missouri v. Holland

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i. Rule: A treaty that infringes the rights reserved to the states under the
Tenth Amendment to the United States Constitution may nevertheless be
considered valid if it is made under the authority of the United States
and is thus the supreme law of the land.
ii. Fact: 1913 treaty between U.S. and Great Britain to protect migratory
birds. Both countries agreed to pass acts to enforce the treaty. Congress
had the power to pass the treaty under Art. 4 § 3 Cl. 2 and the
Commerce Clause.
iii. Issue: Whether a treaty that infringes the rights reserved to the states
under the Tenth Amendment to the United States Constitution may be
considered valid when an Act of Congress performing the same function
would be invalid.
iv. Holding: The Act is okay because the treaty falls under the Supremacy
Clause. This is not a backdoor to give Congress board powers because
the President had to enact a treaty. The 10A argument is disposed of
because the birds are migratory and are not the property of certain states.
Pragmatically, states must uniformly fall in line when enforcing treaties.
Because Art. 1 offers no power to regulate international treaties,
Congress must look to the Necessary and Proper clause to enact not only
enumerated powers but those of other federal officers.
e. Bond v. U.S.
i. Rule: A federal statute will not be interpreted to reach state crimes
unless Congress has made its intent to do so clear.
ii. Fact: Jealous wife tried to poison her husband’s lover.
iii. Issue: Will a federal statute be interpreted to reach state crimes without
a clear congressional intent to do so?
iv. Holding: No. Clear proof of congressional intent to intrude upon powers
traditionally reserved for the states is necessary before a statute will be
interpreted in such a way. States retain broad powers to legislate in
certain areas, including against local crimes. The federal government
does not possess these broad police power and may only exercise the
enumerated powers granted in the Constitution.
XV. State Immunity from Federal Regulation
a. National League of Cities v. Usery (overturned by Garcia) (1985)
i. Rule: The Fair Labor Standards Act as applied to state employers is
unconstitutional as a violation of the Tenth Amendment.
ii. Fact: FLSA made minimum age higher and imposed max hours for both
public and private employees. The state would have to pay the public
employees the increased minimum wage. In Darby under the affectation
doctrine, Congress has the power to impose minimum wage.
iii. Issue: May Congress regulate state employers through the Fair Labor
Standards Act as an exercise of its Commerce Clause power?
iv. Holding: No, the FLSA is an unconstitutional exercise of state power
because it encroaches on state power. Congress cannot force states
actors to enforce federal policy. The law is not generally applicable.
Congress does not have the power to regulate state employees in

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traditional state functions, but they can set a national minimum wage
for private workers.
1. Test: 10A applies to areas of traditional state governmental
functions.
v. Blackmun Concurrence: this is a balancing test not a per se rule. The
test concocted by Rehnquist in the majority is made up.
vi. Dissent: Not concerned with 10A and federalism. The federal
government has power as determined by precedent.
b. Garcia v. San Antonio Metro Transit Authority (overturned League of Cities)
i. Rule: Congress has the constitutional authority to regulate the wages
and hours of state employees under the Commerce Clause.
ii. Fact: SAMTA refused to pay overtime to their employees claiming they
were constitutionally immune from FLSA because they were partaking
in traditional state functions.
iii. Holding: This overturned League of Cities because that ruling was
unclear on what “traditional state functions” means. That ruling was not
necessary to protect state sovereignty as required by the 10A. States play
a significant role in electing representatives to the legislative and
executive branches of the federal government. Elected representatives
then continue to represent the interests of their states while in office.
States are also vested with indirect control over the House of
Representatives and the Presidency by virtue of their control of electoral
qualifications. Moreover, the fact that states have been able to channel
federal funding into their respective treasuries to finance public works
programs indicates that the political process is adequately functioning to
provide for their needs. You cannot mess around with the procedural
limits.
c. New York v. U.S.
i. Rule: Congress may not compel states to enact or administer a federal
regulatory program.
ii. Fact: The Act encouraged states to adopt programs to dispose of their
own waste by creating three incentives: a monetary incentive to
encourage states to open waste sites, an access incentive to allow states
without sites to be denied access to other states’ sites, and a take-title
provision which required a state, upon request of a waste-generator
within its borders, to take title to the waste and pay damages to the
generator for any harm caused by the state’s failure to take title. 2
counties in NY sue for having to house the waste. They didn’t like the
procedural elements of the quasi-mandatory program. The monetary
provisions are analogous to the spending provisions imposed by
Congress on states because they still have a choice in the matter.
iii. Holding: Congress could not exert power on the states this way. The
Nuclear Waste Act differed from other federal mandates because they
were using the states as tools to regulate, rather than direct regulation.
Congress could impose the monetary incentives and allow cite denial,
but they could not take title. The take-title provision is unconstitutional

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because it takes away the states right to choose. There are two ways
Congress may urge a state to adopt a legislative program consistent with
federal interests: (1) as part of its spending powers, Congress may attach
conditions on states’ receipt of federal funds, or (2) where Congress has
the authority to regulate private activity under the Commerce Clause,
Congress may offer states the choice of regulating that same activity
according to federal regulations or having state law preempted by
federal regulations.
iv. Notes: The Constitution imposes some limitations on states but they
cannot take over state power (but this is mushy and doesn’t mean a
whole lot).
1. Is it more powerful to regulate the state or individuals?
a. When the federal government makes states do something,
the people will hold the state officials responsible for
federal action.
b. Counter: states act of protectors of individuals and rights,
so the state is to push back against the federal government.
d. Printz v. United States (Anti-Commandeering Principle)
i. Rule: Congress cannot use the federal government in certain ways to
regulate where states have traditionally had the power to do so. Congress
may not compel state officials to participate in the administration of
federal programs.
ii. Fact: State and local officials were required to conduct background
checks of prospective firearm purchasers. Under the Brady Act, sellers
of firearms would report sales to their county Chief Law Enforcement
Officers (CLEOs). Printz (a state employee) object enforcing a federal
regulation.
iii. Holding: Congress may not compel state CLEOs to administer federal
programs. Firstly, no clear evidence exists that historical Congresses
believed they had the power to compel state executives into federal
service. Secondly, the Constitution creates a system of dual sovereignty
whereby the states and the federal government are independent entities
with different governmental functions. Thus, the Constitution’s structure
suggests that it is inappropriate for the federal government to violate
states’ status as separate entities by compelling their officials to perform
federal roles. Even if they did not bring this suit, this still would have
been unconstitutional à unconstitutional acts cannot be made okay
through state consent. This also takes power out of the executive power
to enforce the laws because the president does not have power over state
officials. The Court looked to history and tradition when understanding
state policy making functions and federalism.
iv. History and Tradition looked at by the Courts:
1. Federalism Paper 27
2. Continental Congress: there was very little state regulation here so
that indicates that they cannot encroach on state power

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a. Stevens and Souter Dissent: The creation of the

Constitution allows for federal regulation of states, giving
them more power over this issue.
3. No evidence
v. Differentiate from Garcia: there is more regulatory obligation in this
case and imposes an unfair financial burden on the state by requiring the
CLEOs to enforce federal regulation. CLEOs must also take
particularized action, unlike the issue of minimum wage.
XVI. State Sovereign immunity as a Limit on Federal Power (11A)
a. 11A Analysis: bars citizens of another state or citizens of a foreign state from
suing states. There is nothing in the 11A about a citizen of the state suing their
own state.
i. 11A (1795) was a response to Chisholm v. Georgia (1793) (SCOTUS
allows a SC citizen to sue GA) à court relied on Art. III § 2
ii. States retain state sovereignty after ratification because
b. States Sovereign Immunity: States are sovereign and are immune from suits
because they can do no wrong. States can consent to begin sued (politically savvy
to do this and it can occasionally be in the state’s best interest).
c. Why did the Ratification of the Constitution not take state sovereign immunity
away?
i. States were still allowed to retain police power. States consented to
giving up some power but not all of it.
d. Art. III § 2 Grants Federal Jurisdiction too:
i. State v. state
ii. State v. citizen of another state (11A bars this)
iii. State v. its own citizen (the issue in Alden)
1. 11A in relation to state v. its own citizen:
a. 11A gives state sovereignty back
b. Counter: 11A affirms state sovereignty (they never lost it)
e. Alden v. Maine
i. Rule: Congress may not authorize suits against state governments in
state courts, even on federal claims, without the state government’s
consent.
ii. Fact: State Prison worker is suing Maine under the FLSA wanting to
recover proper minimum wage. Sues in both federal and state court. The
state court says the state CANNOT be sued.
iii. Issue: Can state employees sue the state (their employer) for back
wages?
iv. Holding: No, they cannot sue the state in a sovereign capacity. There is
a baseline understanding that states are sovereign. Congress’s Article I
powers do not grant it power to subject non-consenting states to private
suits for damages in state courts. The states’ sovereign immunity from
suit is not actually derived from the Eleventh Amendment but is a
fundamental concept of sovereignty they enjoyed before ratification of
the United States Constitution. The historical context surrounding the
adoption of the Constitution and later, the Eleventh Amendment,

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establishes the inference that the Framers never intended to strip the
states and their courts of their sovereign authority except as was
expressly provided by the Constitution.
f. TEST: Who is the entity bring the suit?
i. Look at who is on both sides.
ii. What court is it in (state or federal)?
iii. What power is Congress using/ what claim is being brought?
iv. Has the state consented to suit?

XVII. Executive Privilege

a. Certain government officials are immune from certain suits.
b. Arises under the nature of enumerated power and Art. II § 1, vesting clause
directing the president to be the commander and chief and to take care that the
laws are reasonably executed.
c. U.S. v. Nixon (1974)
i. Rule: A presidential claim of privilege asserting only a generalized
interest in confidentiality is not sufficient to overcome the judicial
interest in producing all relevant evidence in a criminal case.
ii. Fact: Generally, issues between the president and legislative branch are
worked out between the two of them but in this case Nixon would not
hand over certain documents and moved to quash the subpoena.
iii. Nixon’s 2 Defenses
1. Political Question doctrine would bar the courts from hearing this
case.
a. Response: this is arising in the criminal law context and
traditionally judicial proceedings have been allowed.
2. The president has the executive privilege to not hand over the
documents.
a. No, he cannot hold the documents that relate to the
executive function. The resolution of the case trump’s need
for secrecy.
3. Holding: No. Although there is a presumptive presidential privilege
for his confidential communications, when the communications do not
concern military, diplomatic, or sensitive national security secrets, that
presumption may be rebutted due to the constitutional need to produce
all relevant evidence in a criminal case. Thus, there is no absolute,
unqualified presidential privilege. Separate powers were not meant to
operate with absolute independence. A generalized claim of
presidential privilege based on a claim of public interest in
confidentiality does not overcome the interest in producing all relevant
evidence consistent with the fair administration of justice.
iv. Factors Relevant to Examining Executive Privilege:
1. Is it general claim or does the issue deal with national security?
2. Criminal or civil trial?
3. What is the public interest?
v. Nixon v. GSA:

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1. Rule: a former president has some protection from executive

privilege after they leave office.
vi. Nixon v. Fitzgerald
1. Rule: The President of the United States is entitled to absolute
immunity from suits for damages based on actions taken in his
official capacity.
2. Fact: Fitzgerald lost his job with DoD claiming it was because he
testified on the failing of the DoD program. He testified under the
Johnson presidency and was fired by Nixon. Sued Nixon in his
personal capacity for damages claiming he suffered retaliation
from testifying and the reorganization was no to reduce size but
was to fire him.
3. Holding: Yes. The role of the President does not exist at common
law and must be guided by constitutional principles. Fitzgerald’s
argument that the Constitution places the President on the same
level as other executive officers such as governors and cabinet
members is incorrect. The President’s office is more like that of
prosecutors or judges, which are granted absolute immunity from
suit when acting in their official capacity. Extending absolute
immunity to the President is necessary because participating in
lawsuits would severely detract time better spent performing
presidential duties and serving the American people. Additionally
granting absolute immunity to the President would not completely
remove him from checks and balances on his behavior. There are
other checks and balances placed on the president.
vii. Where does executive privilege come from?
1. No textualist claims to this in the Constitution. The Court relied on
precedent to cover the president from private suits for monetary
damage under absolute immunity.
2. Looked to history.
3. Impeachment: this implies that there is one way to prosecute the
president for wrongdoing, implying that there is not opportunity to
sue the president in a civil capacity.
4. Speech and Debate Clause: the clause only extends immunity to
Congress not the president (there is no equivalent in Art. II).
a. The president does not get it because that shows that the
Framers knew how to write immunity.
b. Counter: the branches are co-equal so they all get it.
5. Modern view: implied power from Art. II so that he is not bogged
down with lawsuits so he can exercise power and faithfully execute
the laws. This assumes the president will work in good faith.
viii. Qualified Immunity: there was a violation of the law, but the official
acted in good faith so they are covered. Acts like a presumption that
must be overcome.

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ix. Absolute Immunity: there cannot be any investigation because there

can be no suit against this person. (federal judges and prosecutors and
extends to the president)
1. The actions of the president are sensitive and far-reaching,
requiring that there be absolute immunity.
2. Informational claims (Nixon v. US) will look different from suits
for monetary damages.
3. Scope: only applies to official acts; the president can be sued in his
personal capacity (Clinton v. Jones)
d. Trump v. Mazarus
i. Rule:
ii. Fact: House committees are seeking his personal financial records to
guide legislative reform in money laundering and election fraud. Long
held precedent that House/Senate can subpoena the Executive branch
under the Necessary and Proper Clause and having a legit purpose.
Mazars was willing to comply with the subpoena, but Trump, in his
personal capacity, sued Mazars to stop the firm from providing the
information sought.
iii. Issue: Do Trump and his representatives have to turn over private
financial records to the House?
iv. Holding: No, Congress did not have power to act. Congress cannot
claim an investigation of wrongdoing to embarrass the executive branch.
The standard advocated by the President—a “demonstrated, specific
need”—is too stringent. At the same time, the standard advocated by the
House—a “valid legislative purpose”—does not adequately safeguard
the President from an overzealous and perhaps politically motivated
Congress. Because there is a third party there is no political question.
This is distinguishable from Nixon because this is not a criminal
subpoena. Washington and Jefferson both were able to retain sensitive
documents and not give everything over to Congress. This issue is more
for embarrassment than advancing a legislative purpose.
1. Four-Part Balancing Test:
a. Courts should carefully assess whether the asserted
legislative purpose requires involving the President and his
papers, or whether the information is available elsewhere.
b. Courts should consider whether the subpoena is no broader
than reasonably necessary in scope so as to still serve
Congress’s legislative purpose.
c. Courts should evaluate the evidence Congress has offered
to “establish that a subpoena advances a valid legislative
purpose”—the more “detailed and substantial,” the better.
d. Courts should assess what burdens a subpoena imposes on
the President.
e. Federal Executive Power according to Art. II
i. Nominate officers
ii. Commander in Chief

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iii. Faithfully execute the laws

iv. Offer state of the union address
v. Get advice from subordinate officers
vi. Can convene Congress in extraordinary measures
vii. § 2: Make treaties with advice and consent of the senate; appoint
ambassadors, councils, and ministers (President has the power to
determine which sovereigns are legit)
viii. Commission all of the officers of the US
1. Congress must make the office and the President must fill it
ix. Pardon Power (not shared with Congress making it an indefeasible
power à Congress cannot place any regulation on this)
1. They cannot pardon impeachments.
2. Could be a textual limit to that they may only pardon federal
crimes, but not state crimes.
3. Must issue pardons to faithfully executing the laws.
4. Art. I § 8: Congressional international powers allow Congress to
regulate commerce with foreign nations à there has been a large
statutory grant of power to the President through the creation of the
Department of commerce.
f. Modern Presidential power is very broad and the Congress has been granting
more statutory power to the president à the fight is normally over whether the
statute grants the president power.
g. Co-equal branches of power: each branch is separate and equal and carry separate
powers; however, there are more enumerated limitations on Congress than the
executive branch.
h. Differences between the Art. I and Art. II vesting clause?
i. Art. I says “herein granted” textually limiting the power to the list within
Art. I; there is no limiting principle on the Art. II vesting clause.
i. Youngstown . Sawyer (1952) à focus on the Jackson Concurrence
i. Rule: The President of the United States may not engage in lawmaking
activity absent an express authorization from Congress or the text of the
Constitution.
ii. Fact: In late 1951, steel mill owners and their employees had
disagreements over the terms of collective bargaining agreements.
Unable to reach an agreement, the steel mill employees’ representative
gave notice of intent to strike after the expiration of their current
agreement. The federal government unsuccessfully entered the
negotiations, and on April 4, 1952, the steel mill employees’ union gave
notice of its intent to strike on April 9, 1952. The importance of steel as
a component in weapons and war materials led President Truman to
believe that a reduction in steel production from a nationwide strike
would jeopardize the nation’s security. The President issued Executive
Order 10340 directing Sawyer (defendant), the Secretary of Commerce,
to take control of and continue operating most of the nation’s steel mills.

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iii. Holding: the president cannot seize steel mills under war powers. The
statute did not allow for the president to take control of private property,
even if it was needed for the war efforts.
iv. Jackson Concurrence: 3 zones of power
1. 1) the Max presidential power: president is acting pursuant to an
express or implied authorization of Congressional authorization à
using both Presidential and Congressional power
2. Twilight Zone: president acts in absence of either congressional
grant/denial of authority; h is only relying on his own individual
powers
3. Lowest Ebb: Congress has restricted an area of expressed
executive authority and must show that the executive power cannot
be regulated (this is where Youngstown Falls à not § grant of
power)
v. Vinson Dissent: President may take steel mills as this power falls
directly under the traditional presidential war power. National security
power of the president is expanded in times of war. Lack of
Congressional action allowed Truman to take control.
j. Dames and More v. Regan (1981)
i. Rule: The President of the United States has authority to settle judicial
claims through an executive order if the settlement of claims is
necessary for the resolution of a major foreign-policy dispute with
another country and if Congress acquiesces in the president’s action.
ii. Fact: Iranians seized embassy in Tehran and Carter issued that all Iraian
assets to be froze. Dames & Moore sued Iran's Atomic Energy
Organization (AEO) for failing to pay Dames & Moore for work it had
done on an Iranian nuclear power plant. Claims tribunal was established
to facilitate settlements.
iii. Holding: The United States, along with other countries, has historically
exercised its right to settle the claims of its nationals against foreign
governments for the purpose of keeping peace with those governments.
Although international treaties often accomplish these actions, the
president historically used executive orders, without the consent of the
Senate, to settle claims. Narrow Holding and would come out differently
if this was a domestic issue. This falls within the executive presidential
authority.
iv. Differentiate from Youngstown: This is dealing with foreign affairs, not
national private property.
k. U.S. v. Curtiss-Wright (1936)
i. Rule: An otherwise unconstitutional delegation of legislative power to
the executive may nevertheless be sustained on the ground that its
exclusive goal is to provide relief in a foreign conflict.
ii. Fact: There was a joint-resolution to sell arms to countries currently in
war and C-W violated that.
iii. Holding: There are significant differences in the federal government’s
power to regulate internal versus foreign affairs. All powers given to the

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federal government over internal affairs are carved out by enumerated

provisions in the Constitution from the powers generally reserved to the
states. In contrast, any powers given to the federal government over
foreign affairs are not carved out from state power because the states
never possessed powers over foreign affairs. The grant of power over
foreign affairs vested in the federal government after it usurped power
from the British Crown. The President is the sole organ of the federal
government in the field of international relations. Any exercise of power
by the President must be exercised within the constitutional parameters
granted to him, but the scope of the President’s powers in international
affairs is broad.
1. States never had international powers so there is nothing that the
president is taking from the states, leading to no federalism issues.
a. Art. I § 10 show how states should act on the international
stage (very limited powers) à could mean that states had
more power than the C-W opinion let on.
b. Not a political question because there was a textual source
of authority through statute (unlike Goldwater v. Carter).
There was a private party affected by this leading to a legit
case and controversy!!
XVIII. Presidential Powers in Foreign Affairs
a. Whitney v. Robertson (1888)
i. Rule: When a self-executing treaty and a federal statute relate to the
same subject matter but are inconsistent, the one that was entered later in
date will prevail as the supreme law of the land.
ii. Fact: There was a treaty about duties and Congress passed a law directly
opposed to the treaty.
iii. Issue: Can the legislature and the president abrogate a treaty to
legislation?
iv. Holding: Yes, if the legislation comes after the treaty. The legislation
and the treaty are equal law under the constitution. Under the Supremacy
Clause allows federal legislation to be law, there cannot be a
prioritization of certain laws over treaties.
b. Goldwater v. Carter
i. Rule:
ii. Fact: Executive action is being reviewed because the president
invalidated a treaty with Taiwan by recognizing China as the legitimate
government.
iii. Issue: Can a president unilaterally get out of a treaty?
iv. Holding: No answer, just order to dismiss.
v. Powell Concurrence: Not an issue ripe for judicial review because
Congress had no taken action, so there was no conflict.
vi. Rehnquist Concurrence: Cannot adjudicate because this is a political
question because it is a shared question between the executive and
legislature à they need to work it out.

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vii. Blackmun Dissent: there cannot be a resolution until oral arguments

and there should be a plenary decision.
viii. Brennan Dissent: It is justiciable because there is no text over
abrogating treaties; the Constitution grants the executive power to make
the treaties therefore he should be change treaties.
ix. Distinguish from Youngstown: private litigants brought suit in
Youngstown à it was not an intra-branch dispute.
XIX. President’s Powers in Wartime
a. President’s Wartime power are granted in the vesting clause; however, the
judiciary is hesitant to grant a broad amorphous power to the president.
b. Art. I § 8, Cl. 11, 12, 13, 14
i. Power to declare war, raise and support armies, make rules for the
regulation of captures of land and water; BUT the President is the
commander and chief
c. Reconciling Art. I and Art. II War Powers:
i. Commander in chief has power to direct the actions BUT what is the
limiting principle
ii. The appropriations power of Congress can guide war and incentivize the
executive branch to do what they want.
d. Hamdi v. Rumsfeld
i. Rule: Due process guarantees that United States citizens held in the
United States as enemy combatants must be given a meaningful
opportunity to contest the factual basis for that detention before a neutral
decision-maker.
ii. Fact: The president was guaranteed power under the AUMF
(authorizing the President to use all appropriate and necessary force
against persons suspected of engaging in terrorist activity against the
United States) but it did not officially declare war after 9/11 but it
functionally declared it through legislation. Hamdi was a US citizen but
was suspected of participating in terrorist activities.
iii. Government Position: the president has inherent Art. II powers to
detain Hamdi and the President has statutory power under the AUMF to
detain him even though there is nothing in the AUMF about detention.
iv. Issue: When a U.S. citizen is labeled as an enemy combatant, is he
entitled to the constitutional protections of due process?
v. Holding: Yes. A U.S. citizen accused of being an enemy combatant
must be afforded an opportunity to be heard by a neutral decision-maker.
The government must provide basic procedures for the citizen-detainee
to challenge his detention. In passing the Authorization for Use of
Military Force (AUMF) resolution, Congress authorized the President to
exercise the “necessary and proper force” to combat terrorist activity.
The 5A and 14A are at issue.
vi. Scalia Dissent: Must suspend the writ of Habeus Corpus to detain a US
citizen (but that was not done); there was not enough process being
given here à a US citizen must be given the full protection of the law

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vii. Thomas Dissent: The President has inherent Art. II powers to detain
even US citizens; Art. II is sufficiently broad to cover this.
viii. Notes: When the country is facing immanent threat the President has a
wide swath of power under the Commander and Chief Clause but the
question if how long does that power last.
XX. Character of Legislative Power under the Constitution
a. Commerce Clause and the Necessary and Proper Clause à substantive content of
legislative authority
b. Procedural Power of the Legislature (Art. I § 7)
i. Provides the floor for procedural guarantees
ii. requires a public record of the yes/no’s for accountability purposes
iii. President must sign the bill for it to become law (serves as a check on
power and the president has a unique set of political reasons for
passing/stopping the passage of the bill)
1. The president cannot absolve himself from inaction à the bill will
either not take effect if he refused to sign it, or will take effect if he
signed it or waits ten business days without action
c. Formalist v. functionalist view of legislative power?
i. Formalist: you follow the process or you don’t.
ii. Objective Approach: there is an objective meaning of legislative power
d. How to apply Art. I § 7?
i. Is this legislative power? à only legislative action has to go through § 7
process.
1. How to find this out?
a. Look to Constitutional meaning at the time of the founding
and debates to derive an originalist meaning
b. States practice and how they apply legislative power
c. Text of a the Constitution à look to enumerated powers to
derive what the legislative branch is allowed to do
d. What were the purposes of the constraints imposed with the
enumerated powers (issue with this: there must be an
overwearing consensus on what the purpose is)
e. Legal dictionary for textualist analysis
e. Powers each House/Member can do outside of an objective meaning of legislative
power:
i. Impeachment Power
1. House § 2 cl. 5: bring forth impeachment
2. Senate: § 3 Cl. 6: hear impeachment trials
ii. § 7 Origination Power: Bills raising revenue must originate in the House
iii. § 2 Cl. 5: Judge election returns and qualifications
1. Discipline own members
2. Create own rules of proceedings (ex. filibuster in the Senate)
iv. § 2 Cl. 3: Choose officers (certain offices are specified by the
Constitution)
v. § 2 Cl. 2: Senate has Consent power over appointments and treaties

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vi. § 2 Cl. 3: Congress may set how the consensus is taken (they must do
this by law)
vii. Art. III. § 3 Cl. 2: set punishment for treason
viii. Art. III § 1: Ordain and establish courts
ix. Art. I § 7: Compel members to appear
x. Art. 4: states how senators are elected
xi. § 7: Keeping journal of proceedings
xii. Power to meet and power to adjourn
xiii. Art. I § 10: consent to states doing things they could not normally do
(Congress could consent to a state going to war)
xiv. Art. 5: Propose Constitutional amendments
1. Sets out the procedure for Congress to do this à may propose
amendments for set out a convention
f. INS v. Chadha (1983) à held the single house legislative veto to be
unconstitutional
i. Rule: Legislation providing Congress with a one-house veto over an
action of the executive branch is unconstitutional because it does not
meet the constitutional requirements of presentment and bicameralism.
ii. Fact: Congress passed § 244(c)(2) authorizing one house of Congress,
by resolution, to invalidate an executive determination that allowed a
deportable person to remain in the United States. Chadha came to the US
on a student visa, but he remained after the visa expired. Chadha applied
for a suspension of deportation. After a deportation hearing, an
immigration judge suspended Chadha's deportation under § 244(a)(1) of
the INA, which allows the Attorney General to exercise his discretion to
suspend a deportation. The suspension was reported to Congress
pursuant to § 244(a)(1). However, after considering 340 cases, the
House of Representatives passed a resolution vetoing Chadha's
suspension and the suspension of five other individuals pursuant to §
244(c)(2).
iii. Issue: By allowing only 1 House, acting in a way that alter the rights
and responsibility of the executive branch, are they acting in a manner
consistent with § 7?
iv. Holding: No, the 1 house veto circumvents the process laid out in § 7.
They needed to follow the §7 processes. The presentment and
bicameralism clause require that the act of the legislature go through
both houses and be presented to the president. Congress cannot act in
policy or legislative actions without following the process.
v. Powell Concurrence: Congress should proscribe individual rights and
the majority opinion to too broad.
vi. White Concurrence (Functionalist): It is not necessary to get rid of the
legislative veto, as it would override nearly 200 other statutes containing
the veto. It is a necessary check on the executive branch, especially with
the expansion of the administrative state. More outcome driven.
vii. Formalist View: Would look at the text of the constitution or the statute
to see if the legislative veto fell under that power. More process driven.

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viii. Congressional Limits on the Immigration Services Outside of Leg.

Veto:
1. Impeach Head of INS
2. Withhold funds from INS
3. Pass new legislation that contains discretion of the AG
a. Statutes are normally vaguer so they could be less
accountable and pass the responsible on to the head of the
agency
g. Clinton v. City of NY (1998) à the line item veto is unconstitutional
i. Rule: There is no provision in the United States Constitution that
authorizes the President to enact, amend, or repeal statutes.
ii. Fact: The Line Item Veto Act (Act) gave the President the power to
“cancel in whole” three types of provisions signed into law. Specifically,
the Act allowed for the cancellation of (1) any dollar amount of
discretionary budget authority; (2) any item of new direct spending; or
(3) any limited tax benefit. The effect of the cancellation was the
prevention of the item from having any legal force or effect. President
Clinton (defendant) invoked the Act to cancel a provision in the
Balanced Budget Act of 1997 that would have allowed New York to
avoid repaying funds received under Title XIX of the Social Security
Act.
iii. Government Argument: the cancellation power is what was given in
Clark v. Fields; this is no different than the spending power.
1. Response: the line item veto differs from Clark v. Fields because
they could only veto certain tariffs (dealing with foreign trade) and
the order of events of the veto is a meaningful distinction.
iv. Holding: The Line Item Veto is unconstitutional because it
circumvented the purpose of the § 7 procedure. This allows for veto
power before something became law.
XXI. Executive Power
a. Inherent Powers
i. There are some inherent powers in the executive branch over diplomatic
relations and national security.
ii. Power to carry out the law and domestic statutes
b. Congressionally Assigned Powers
i. Humphrey’s Executor: legislator assigned power to the executive that
was outside of the executive power that à power to fire certain
executive officials was held unconstitutional (the Court has functionally
overruled this as they do not rely on this)
ii. Morison: court suggested that even if you seem to be doing something
executive, but those actions are not substantive than it is not really
executive
c. Modern SCOTUS View: the executive power is vested in the president
d. Myers v. US:
i. Rule: The U.S. Constitution grants the president the sole power to
remove executive officers.

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ii. Fact: Myer was appointed as the Postmaster General with the advice
and consent of the Senate. Then he was removed from the position by
the president. Brought suit for back pay.
iii. Issue: The statute required the consent of Congress to fire him, is this
unconstitutional?
iv. Holding: Yes, the PMG is an officer of the US; there are certain Art. II
requirements of now he is selected. The removal power is incident to the
power to appoint, this is the inverse of textual proof that there is the
power of removal. Impeachment is the only text of the Constitution that
deals with removal. Congress cannot retain the power of removal. More
sympathetic to the idea of a unitary executive.
v. Notes: We do not want independent people having the power of removal
over the president; this would lead to lack of uniformity and
inefficiency, lack of checks and balances. Focused more on purely
executive functions (DOJ and Treasury)
e. Humphrey’s Executor. U.S.
i. Rule: The president's power to remove an executive branch official is
not applicable to officials with legislative or judicial functions.
ii. Fact: Suit for back pay for the FTC commissioner that was fired by the
president because he did not implement the policy initiatives.
iii. President Claims: Congress cannot limit the President’s power and the
court should follow Myers.
iv. Holding: The President must have a good faith reason to fire the FT
official. The Act is not to constraining of the executive branch. The
President does not have the authority to fire the FTC commissioner
because they are merely reporting back to the president and not carrying
out executive functions. Looking more at the independent commissions.
f. Bowsher v. Syner
i. Fact: Congress was trying to balance budgets and deficient couldn’t be
higher than X amount by the law. Comptroller General would break tie.
CG is appointed by the President with advice of Senate, but only
Congress can remove him. Seems that CG has executive power, but is
under legislative control.
ii. Issue: Can CG delegate executive power to an officer but retain removal
power?
iii. Holding: No, The Constitution does not permit Congress to retain an
active role in supervising officers tasked with executing the laws of the
United States. Article II, Section 2 of the Constitution permits the
President to appoint officers with the advice and consent of the Senate,
but then explicitly states that Congress shall only be involved in removal
of these officers through the impeachment process. If Congress had
additional removal powers over executive officers, the legislative branch
would essentially have control over the execution of laws. This would
violate the separation of powers doctrine as Congress could exercise a
“congressional veto” over the actions of executive officers by

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threatening to remove or remove officers who were found to be

executing laws in a manner unsatisfactory to Congress.
1. Facts Leading to the Holding:
a. The CG got to pick which part of the budget to exclude
which gives them the power to carry out the legislative
mandate to carry out the law which is an inherently
executive function. CG focuses on the interpretation of the
law which makes it executive.
iv. Steven’s Concurrence: The CG is more policy related like in Chadha
and is more like an Art. I § 7 issues (lack of the correct use of process).
v. White Dissent: Takes a functionalist approach and the CG is more of an
agent of the legislature, even if they are not doing inherently legislative
functions.
vi. Blackmun Dissent: There has been the authorization of a function that
is wrong
g. Morrison v. Olsen
i. Rule: A law vesting the judiciary with the power to appoint an inferior
executive officer (an independent counsel) and prohibiting the Attorney
General from removing the officer without good cause does not violate
separation-of-powers principles.
ii. Fact: Statute allows for the DOJ to have a special counsel to investigate
high-ranking government officials. The AG retains power of removal of
independent counsel for “good cause.” The IC would only be needed if
the AG found it necessary.
iii. DOJ Position: The IC violates the appointment clause and the judiciary
is empowered to act outside of the Art. III and work in the executive.
1. Court holding: the IC is an inferior officer because he could be
fired by AG, limited in subject matter and jurisdiction, and limited
in term.
2. Response 2: No, the courts are outside of the judicial functions but
they are no exercising an executive function.
iv. Issue: Does this violate the separation-of-powers?
v. Holding: No. A law vesting the judiciary with the power to appoint an
inferior executive officer (an independent counsel) and prohibiting the
Attorney General from removing the officer without good cause does
not violate separation-of-powers principles. The Constitution divides
federal officers into “principal” and “inferior” officers. The
Appointments Clause requires principal officers to be appointed by the
President and approved by the Senate, but allows inferior officers to be
appointed by the President, department heads, or the judiciary. There is
not a precise line separating principal and inferior officers, but some
factors affecting an officer's characterization include whether the officer
is subject to removal by a higher department official and whether the
scope of the officer's duties and jurisdiction is limited. In this case, the
independent counsel is an inferior officer. First, the independent counsel
is subject to removal by a higher executive officer, the Attorney General.

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Second, the independent counsel’s powers are limited to investigation

and prosecution, which do not impact executive policy. In addition, the
independent counsel has limited jurisdiction and tenure. Thus, Congress
may authorize the interbranch appointment of independent counsels by
the judiciary, as permitted by the Excepting Clause of the Constitution.
vi. Modern Take: An officer is inferior if they are supervised by someone
other than the president.
1. How closely does the higher executive official supervise?
2. How easily would the officer be fired?
vii. Scalia Dissent: Formal separation of powers is stronger than the need
for IC. The IC is inconsistent with the executive power and the
Constitution; electoral accountability is paramount. There is no
meaningful supervisorial power over IC à the IC must be more
subordinate to the president.
h. Qualification for Congressional Office (Art. I § 3 Cl. 2-3): à makes the
officials more tied to the state they are in
i. The representative must be of the district they represent to make them
more accountable to the population they represent; state lines do not
change, but the districts do, and it is historical practice.

House Senate
• 25 years of age • 35 years of age
• 7 years as a US citizen • 9 years a US citizen
• Inhabitant of the state where elected • Must be inhabitant of the state where
elected

i. Procedural Restriction on Elections

i. Art. I § 4 Cl. 1: time, place, and manner of holding elections for
Congress shall be proscribed by state legislatures, but Congress retains
the power to amend these regulations
ii. Art. I § 5: each House shall be the judge of the elections, returns, and
qualifications of its own members (political questions doctrine is raised
here)
1. Powell v. McCormack: refused to seat someone who committed a
crime; not a political question because Congress cannot impose
additional limits.
iii. Art. I § 6: no dual holding of office: the compatibility clause means that
you cannot be in Congress and an executive officer or in a judicial
position. You cannot leave a seat to be in a civil position if the office
was created or pay was raised while in Congress.
j. U.S. Term Limits v. Thornton
i. Rule: The requirements for membership in the United States Congress
are established by the Qualifications Clause of the United States
Constitution and may not be amended by individual states.
ii. Fact: Arkansas tried to impose term limits on their federal House reps.
iii. Issue: Can states impose limits on federal congressional candidates?

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iv. Holding: No, this was an improper exercise of state power and violates
the federal Constitution, even though there is no textual grounds saying
that states cannot impose limits. The requirements for membership in the
United States Congress are established by the Qualifications Clause of
the United States Constitution, and may not be amended by individual
states. The Tenth Amendment to the United States Constitution reserves
to states powers that were not expressly delegated to the federal
government when the Constitution was created. However, the Tenth
Amendment cannot reserve to states powers that they did not originally
possess before the adoption of the federal Constitution. Even if the states
did possess some sort of original power in this area, the framers intended
the Constitution to be the exclusive source of qualifications for members
of Congress, and thus divested states of any power to add qualifications
when they created the federal Constitution.
1. Evidence: general text and structure; debates and ratification
a. Founders, states cannot add more qualifications
v. Thomas Dissent: looks to the 10A (lack of discussion in Constitution
text leads to this being a state power. Looks to the power of the people,
people is where governing power is derived.
XXII. Bill of Attainder (Art. I § 9 Cl. 3):
a. Congress cannot pass a bill by Congress that legislation that imposes
impermissible legislative punishment. This is a violation of separation of powers
by intruding on both the Executive and Judiciary branches. This is also an
impermissible strain on individual liberty.
b. Art. I § 9 Cl. 3: federal Congress may not pass bills of attainder.
c. Art. I § 10 Cl. 1: states may not pass a bill of attainder.
d. Issue Spotting:
i. Does the Act specify a name?
ii. What is the punishment?
iii. What is the line between punishment and regulation?
e. U.S. v. Brown (1965)
i. Rule: Section 504 of the Labor-Management Reporting and Disclosure
Act violates the Constitution because it operates as a bill of attainder.
ii. Fact: Section 504 of LMRDA makes it a crime for a member of the
Communist Party to serve as an officer or employee of a labor union
because Communists were thought to be likely to incite political strikes.
Brown (defendant) was working as a longshoreman for many years and
was also an open advocate of Communism.
iii. Holding: A bill of attainder is a legislative device that targets a group of
people and declares them guilty of a crime. The Bill of Attainder Clause
found in the United States Constitution operates as a general safeguard
against this legislative exercise because it was determined by the
Framers of the Constitution to be a violation of the separation of powers
for the legislature to act as judge and jury. Here, the LMRDA does not
list characteristics that make an individual unfit to sit on a union board.

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Rather, it identifies a certain group of people, Communists, and declares

them unfit to serve.
f. Nixon v. Administrator of General Services
i. Rule:
ii. Fact: Nixon wanted to take 42 million pages and 880 tapes when he left
office. There was a practice of doing this. Congress passed the Nixon
Act to regulate the taking of records. The Act included that the executive
branch was to determine which docs were public versus private.
iii. Nixon’s Arg.: would place a burden on him and impose a punishment
on him from an act of the legislature.
iv. Issue: Did the Act violate the Bill of Attainder Clause?
v. Holding: No, the AGS can take hold of public documents and return
them back to the president. The president has the power to determine
whether the materials are sensitive. There was no legislative record that
the intent was to punish.
1. Three-Factor Balancing Test:
a. Historical understanding of punishment
b. Type of severity of the imposed burden
c. Legislative record an intent to punish but cannot dive too
deep into the minds of the lawmakers à this is more of a
last-step resort
XXIII. Protection of Economic Liberty à Contract Clause (Art. I § 10)
a. “No STATE shall pass any law impairing the obligation of contracts.” (nothing
about the federal government)
b. States may still regulate financial interests but they cannot impair the current
contracts. They may regulate future contracts.
c. Home Building v. Blaisdell
i. Rule: In times of economic emergency or other exigent circumstances,
states may impose increased limitations on the freedom to contract if
those limitations help address the emergency.
ii. Fact: The law extended the amount of time for mortgagors to redeem
their mortgages from foreclosure contrary to the terms previously agreed
upon in the mortgage contract. The Blaisdells defaulted on their
mortgage. Relying on the Minnesota law, the Blaisdells applied in state
district court for an extension to their redemption period. The
Association objected to the law on the grounds that it violated the
Contracts Clause, Due Process Clause, and Equal Protection Clause of
the Fourteenth Amendment of the United States Constitution. The court
granted the Blaisdells an extension under the law but required them to
pay $40 per month to the Association during the extension period.
iii. Issue: Does a law extending the amount of time for mortgagors to
redeem their mortgages from foreclosure during the Great Depression
violate the Fourteenth Amendment?
iv. Holding: This is not a Constitutional violation because it is a time of
emergency, and this can extend to contract mortgages. This is limited
and not burdensome.

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d. Permissible Laws that Impair Contracts à Can retroactively change contracts

in a severe economic emergency if the regulation is…
i. Nothing that substantially impairs
ii. Must have legitimate ends
iii. Oriented toward a certain individual or generally applied
iv. The terms reasonable
e. Allied Structural Steel Co. v. Spannaus à this is a limiting case
i. Rule: A state may not pass legislation that retroactively and
significantly affects the contractual obligation of an employer to provide
a pension plan for its employees.
ii. Fact: The state law required a 10 year pension plan if you fire/more, but
you must get to a certain age/been with the company for 10 years to get
pension benefits. The goal of the MN § is fairness, and the new statute is
just a modest burden that does not impair contractual obligation. The
goal is to protect employees in the MN companies.
iii. Contract Claim: the previous contract between allied and employees is
retroactively impairs the contract.
iv. Holding: No, this Act was constitutional because it violates the contract
clause. There was a substantial impact with a severe burden. Looked to
Blasidell to determine if the court was dealing with a broad problem or
is it to specific that it is targeting a certain company/industry.
v. Note: The severity of the burden seems to be dispositive (this was a
targeted law)
XXIV. The Taking of Private Property
Physical Taking Regulatory Taking
• Can be a minor occupation (like the • Does not require physical occupation
TV cables) of the land
• The government must physically enter • Expands the takings clause to include
into the space, even if it is the airspace property that is taken through laws
above the land that significantly that destroy the economic value of the
devalues the land. property
• A physical taking can include a • Limiting Factor: the law must take
disruption so great that the enjoyment ALL the value of the land (this is
(both personal and economic) are so supposed to mimic a physical taking)
devastated. à a regulation prohibiting the
building of beachfront property is a
taking; but restricting the selling of
eagle feathers is not complete
destruction

a. 5A Takings Clause: the state shall not take property for public use without just
compensation.
i. Basic elements for if a taking/regulation is appropriate:
1. Is it taking?
2. Is it for public use?
3. Has there been just compensation?

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b. Power for this is derived from Art. I § 8 Necessary and Proper Clause
c. Textually is doesn’t limit taking to public use:
i. No imitation on taking for private use
ii. The 3A, Bill of Attainder, 4A, Due Process: nor be deprive of life,
liberty, or property without due process of law à strongest showing
taking clause cannot be used for private use
d. What is a taking?
i. United States v. Causby à physical taking
1. Rule: Property is taken within the meaning of the 5A direct and
immediate interference with the enjoyment and use of private land
that renders it uninhabitable.
a. When there is a complete invasion of the land there does
not need to be complete destruction, just need of the use
and enjoyment is a taking.
2. Fact: A new use of the airport was disrupting a family chicken
farm. The U.S. military planes were flying so low flying and
frequently it was disruptive.
3. Issue: Is property taken within the meaning of the Fifth
Amendment by direct and immediate interference with the
enjoyment and use of private land that renders it uninhabitable?
4. Holding: This was an improper taking because economic use was
destroyed. Even though the government did not physically occupy
the land, but the government destroyed the land. The airspace was
considered part of the land. There was a reduced enjoyment of the
land.
ii. Regulatory Taking: no government physical occupation or benefit; but
there is so much regulation that it might decrease value and enjoyment
of the land does lead to a taking
1. Loretto v. Teleprompter Manhattan
a. Fact: The law requires city apartment owners to make
room for TV cables.
b. Issue: Is this a physical intrusion?
c. Holding: Yes, a physical intrusion reaches the extreme
form of physical occupation regardless of how small the
space occupied is. There does not have to be a physical
occupation by the government, but it has to be the
government imposing an additional burden on the owner.
i. Requiring a home owner to do something (like put
in a fire alarm) is not a taking).
d. Distinguish from Causby: the court was more concerned
about economic deprivation.
2. Penn Central Trans v. City of NY
a. Holding: This was not a regulatory taking; it was just a
limit on how to use the land. There was no intrusion on the
current use of the land, just a limit on what can be done
with it. There is still economic value.

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b. Dissent: not a standard zoning law that is specific to one

party and is placing an affirmative duty on the owner,
making this a taking.
iii. How does this fit in with the taxing power?
1. The taking clause is a limit of the taxing power.
2. An unfair regulation is not always a taking.
iv. Test Tips:
1. First determine if there was a taking?
a. If there is only economic disruption or changed
expectation, there is NO taking (this in conjunction with
physical occupancy or complete economic destruction, else
may be a taking)
2. If no, then the analysis is done because there was no taking.
3. If yes, then must determine if it is used for public use. Was the
taking for the general welfare of the public use?
a. If yes, was there just compensation?
b. If no, and is for private use, this is an improper taking.
v. Andrus v. Allard
1. Rule: A prohibition on the sale of lawfully acquired property is not
a taking for Fifth Amendment purposes.
2. Fact: Congress passed the Eagle Protection Act prohibiting the
sale of eagle eggs or body parts, but does not prohibit the
possession or noncommercial transfer of items that were lawfully
obtained before the law went into effect in 1940. There were
criminal penalties associated with this.
3. Holding: This is not a taking because the reduction in the types of
uses, even the most profitable, is not a taking because it could be
used for other things. There is not enough here to justify a taking,
therefore no compensation is necessary.
vi. RULE FOR REGULATORY TAKING: There must be COMPLETE
economic destruction in order to qualify as a taking.
vii. Lucas v. South Carolina Coastal Council
1. Rule:
2. Fact: Plaintiff has bought two lots on beach he was going to build
houses on. SCCC passed a regulation barring him to build. He
claimed this to be a physical intrusion.
3. Holding: This is a taking. There are two buckets for takings and
this falls into the regulatory taking buecase all of the economic
value of the land was destroyed.
a. Physical Occupation: no matter how severe or the
purpose, there must be compensation if there is intrusion on
the land
b. Regulation: denies the economically beneficially or
productivity of the land.
4. Counter: This is not a taking because there is some economic
value left in the land, even if Lucas could not build on it.

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5. Blackmun Dissent: there is not a complete taking.

6. Stevens Dissent: will keep the state from protecting public land.
This holding is too burdensome on the government.
e. Physical Takings
i. Yee v. City of Escondido
1. Rule: Rent controls do not constitute a physical taking.
2. Fact: California enacted the Mobilehome Residency Law (MRL),
which limited trailer park owners’ ability to evict their tenants.
Typically, a park owner leased space on her property to the owner
of a mobile home. Thus, the park owner owns the land, the mobile-
home owner owns the structure, and the two are landlord and
tenant. If the tenant sold the mobile home, the MRL prohibited the
landlord from requiring the mobile home, upon its sale, to be
removed from his land. The landlord also could not charge a fee
for the sale nor refuse to lease to a mobile-home buyer who is able
to pay rent for the park space. However, the MRL allowed park
owners to evict their tenants if, among other things, the owners
wanted to change the use of the land. In 1988, the City of
Escondido (defendant) enacted rent control laws that set rent at
1986 levels, which could be increased only if the city council
approved. The council would approve any increase that was
deemed “fair and reasonable” according to number of
nonexclusive, enumerated factors. Yee (plaintiff), a trailer-park
owner, challenged the rent control law in San Diego County
Superior Court as constituting a taking.
3. Holding: Rent control is not a taking. There must be some
submission to a physical occupation by the government or
someone else. This was a land regulation; the owner still retained
control over renting to new tenants. The right to exclude was not
being taken away.
f. Is it public use?
i. Kelo v. City of New London
1. Fact: Large corp was building new buildings and they took private
homes to do so using the 5A. The private property owners did not
want to sell.
2. Issue: Can the government take private property and give it to
another private company for public use?
3. Holding: This was for public use. Expanded the definition of
public use to include economic development. The private research
facility would lead to economic gain for the whole community.
Relied on Burman (DC city clean up case the took land to make it
better) and Hawaii Housing Authority (took property from few
wealthy families diversify property holders). Applies more of a
rational basis test to find this to be okay. The whole town would
benefit, so there is no favoritism for the company over the private
property owners.

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4. Kennedy Concurrence: The majority’s standard for upholding

eminent-domain programs if they are “rationally related to a
conceivable public purpose” can be over-applied on the grounds
that it sounds deceptively like the rational-basis review standard in
Equal Protection Clause cases. The determination that a rational-
basis standard of review is appropriate in eminent-domain cases
does not, however, change the fact that transfers of property
intended to confer benefits on particular, favored private entities
with only incidental or pretextual public benefits are forbidden by
the “public use” requirement of the Fifth Amendment.
5. O’Connor Dissent: The majority presents a line drawing problem
and must apply strict scrutiny when determining if something is for
public use or not.
6. Thomas Dissent: Looking to the original public meaning of the
5A and public use. Taking for the general economic welfare does
not fall under that meaning. This ruling allows to much judicial
discretion.
ii. Test Tip: always argue both sides!
1. Property Owner: There has been an intrusion or the entirety of
the economic value has been destroyed.
2. Government: There has not been an intrusion or if there has been
it is for public use.
XXV. State Action Doctrine à 14th Amendment
a. Test Tip: there must ALWAYS be constitutional hook for Congress to pass
legislation.
b. Generally, the Constitution’s power addresses the government's conduct but not
private parties.
c. Congress was granted additional powers through the 13A and 14A
i. 14A § 5: passes legislation to enforce the provision of the article
ii. 14A § 1: a clear prohibition against state and not necessarily the federal
government.
d. The Civil Rights Cases (1883)
i. Rule: Under the Equal Protection Clause of the Fourteenth Amendment,
Congress may only prohibit discrimination by state actors, not private
individuals.
ii. Fact: Congress passed the Civil Rights Act in 1875. Part of the first
section of the Act prohibits discrimination against individuals in
establishments including restaurants, hotels, and stores on the basis of
race. This case is a consolidation of five different cases from various
lower courts heard by the United States Supreme Court.
iii. Private Parties Claim: 14A § 5 only limits only the issues listed in § 1;
§ 1 only deals with state actors (not private actors) à courts affirm this
iv. Issue: May Congress pass an act such as the Civil Rights Act that
prohibits discrimination by individuals?
v. Holding: No. The Equal Protection Clause of the Fourteenth
Amendment functions as a restraint on abuses by state actors of the

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rights and freedoms of United States citizens. The Fourteenth

Amendment under § 5 also gives Congress the power to pass whatever
legislation is necessary to enforce those restrictions on state actors.
Thus, had the businesses implicated in the present cases been state or
local governments, Congress would have acted constitutionally.
Congress can address 14A § 1 violations through the power granted to
them in 14A § 5; however, private actors do not violate § 1 so there is no
violation for Congress to regulate (this reasoning was used in Morrison
as well). However, because all defendants in the cases are private
individuals accused of discriminating against African American patrons
in privately-owned businesses, Congress acted outside the scope of its
Fourteenth Amendment powers. The Civil Rights Act is therefore
unconstitutional. Took roughly 75-80 years to stop private
discrimination through the CC.
vi. Harlan Dissent: Purposivism argument à distinguishes what the
purpose of the act was. The majority focuses too much on the distinction
between state actors and private individuals. In doing so, this decision
ignores the spirit of the Civil Rights Act itself and the intent of Congress
in passing a statute that seeks to prevent discrimination against African
Americans. More weight should have been given to Congressional intent
before striking down the Act as unconstitutional.
vii. Compare to CC and Heart of Atlanta Cases: The CC was not
developed enough in 1883 to fall under that.; it has steadily expanded
since. Interstate commerce was not that broad then.
viii. The 13A is broader than the 14A because there is no references to states.
13A is a self-executing law à there did not need to be Congressional
action to stop slavery. However, the content of 13A limits the scope of
its power.
1. 13A § 2 is included to give Congress incidental powers to punish
the effects of slavery and set penalties. This always Congress the
power to enforce.
2. 14A includes the due process clause making the issue more
expansive.
ix. The Public Function Exception to State Actor Doctrine
1. Private parties conduct can be regulated under the Constitution
when they engage in activities “traditionally exclusively reserved
to the State.”
2. Marsh v. Alabama (1946) à the town was acting as a
governmental body
a. Rule: The First and Fourteenth Amendments protections of
speech and religion still apply to individuals when
operating in a privately-owned town if the town is open to
the public and used for public purposes.
b. Fact: Chickasaw, Alabama was owned by a private
corporation. Except for its private ownership, the town
operated as any other and was closely bordered by and

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virtually indistinguishable from surrounding municipalities.

Marsh (defendant) was a Jehovah’s Witness who stood on a
sidewalk owned by the Company and to distribute religious
literature. She was told she could not distribute literature
without a permit and that no permit would be issued to her.
When she protested, she was arrested and charged with
violating Alabama (plaintiff) state law. She argued that her
activities were protected under the First and Fourteenth
Amendments. Alabama contends that the Company’s
ownership of the town gave it certain property interests
which allowed it to control the activities of its inhabitants.
c. Issue: May a privately-owned town deny traditional First
and Fourteenth Amendment protections of speech and
religion to individuals?
d. Holding: No. Marsh would not have had a criminal
conviction if she was in a public town because states may
not completely prohibit the distribution of religious
literature in public areas under the First and Fourteenth
Amendments. Regardless of whether a corporation or a
municipality owns the town, the public it allows in has an
identical interest in the town’s functionality and the
freedom of communication within its borders. Alabama
cannot suspend people’s First and Fourteenth Amendment
rights while they are in the town because the Company has
opened up the town to the public, and many residents from
other surrounding areas frequently use the town for
commercial purposes. In balancing the interests of the
Company as property owners, with the interests of the
people in freedom of press and religion, the latter are more
important. Alabama acted unconstitutionally in assigning
criminal sanctions to Marsh.
e. Rule: Must look just like a state actor to be one.
f. Reed Dissent: The majority does not give proper weight to
the property interests of the Company. Certain
constitutional limitations already exist regarding the time,
place, and manner of the exercise of religion, speech, and
press. These limitations suggest that the freedoms outlined
in the First and Fourteenth Amendments are not absolute
but can be reasonably balanced against other interests.
Property rights are also highly protected in the
Constitution, and the majority should not have protected
Marsh’s activity of trespassing on the company’s property
just because she was trespassing in the name of freedom of
speech or religion.
g. Issue with line drawing: Who exactly is a state actor?

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i. Ex. public universities are state actors, but private

universities are not as they operate in more of a
contractual sphere.
3. Hudgens v. National Labor Relations Board (1976) à the
shopping mall was not a private actor
a. Rule: A private shopping mall may constitutionally
exclude picketing on its premises even if that picketing
relates to the actual activities of its tenant stores.
b. Fact: Hudgens owned a shopping center, including the
Butler Shoe Co. Employees of the Butler Shoe Co.
warehouse decided to strike over labor issues and began
picketing within the shopping mall and in front of the shoe
store. The general manager informed them they could not
picket in the center or would be arrested, and the picketers
left. They went to a different, nearby location about thirty
minutes later and were again told they had to leave or be
arrested. The picketers left, and their union filed a
complaint against Hudgens. The NLRB issued a cease and
desist order against Hudgens because it believed he
violated the NLRA.
c. Issue: May a private shopping center constitutionally
exclude peaceful picketers from its premises?
d. Holding: Yes. The 1A would have prevented Hudgens’
actions if it had been done by a state actor. Lloyd Corp. v.
Tanner (1972) (which excluded a group from passing out
handbills in a private shopping mall), that case is still the
current law on the issue. The Lloyd case effectively
overruled Food Employees v. Logan Valley (1968)
(prohibited private businesses from excluding peaceful
picketers). The current state of the law permits a private
business to exclude protesters and find that Hudgens acted
lawfully in asking the picketers to leave his shopping
center. The decision of the court of appeals is reversed, and
the case remanded to determine if the Butler Co.
employees’ rights were actually violated under the NLRA.
e. Marshall Dissent: The majority should not have even
reached the 1A issue in the case. The Butler employees
originally brought suit alleging a violation of § 7 of the
NLRA, and the NLRB and the court of appeals both based
their decisions on this statute. The United States Supreme
Court actually remanded the case for further consideration
of the § 7 issue, and it is improper for the majority to have
moved on to decide the 1A issue that was not actually
before it. This case should have been affirmed on the merits
of the decision of the court of appeals on the § 7 issue. The

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prior jurisprudence cannot be reconciled on the First

Amendment issue.
f. Notes: this is more of a functional analysis that the
shopping mall was not acting as a government. Look to the
totality of the control that the shopping mall has, compared
to that of the corporation town in Marsh.
g. Distinguish from Marsh: there is a boundary that is
crossed when you go into a shopping mall, unlike the town
(this falls apart if you apply the argument that rights go
away if you are aware you enter from pubic to private
space). The mall does not have a totality of control over the
people.
x. Judicial Enforcement Exception
1. Private action becomes public action when a court acts to upholds
the private action. Because courts are public actors, judicial
decisions are a form of state action.
2. Although private action alone does not violate the Constitution,
court’s enforcement of the private conduct may constitute state
action.
3. Shelly v. Kraemer (1948)
a. Rule: State court enforcement of a racially restrictive
covenant constitutes state action that violates the Equal
Protection Clause of the Fourteenth Amendment.
b. Fact: In 1911, 30 homeowners in Missouri signed and
recorded a restrictive covenant stating only white people
could live on the street for the next 50 years. Shelleys
(black family) bought home on street in 1945 without
knowledge of covenant. White families on block brought
suit to enforce the covenant and take Shelleys property. The
circuit court ruled for Shelleys. SC of Missouri reversed
and concluded that the covenant was valid and enforcement
was constitutional and undid the private transfer of property
to enforce the covenant.
c. Issue: Does the enforcement of a racially restrictive
covenant by a state court amount to state action in violation
of the Equal Protection Clause?
d. Holding: Yes. Although private homeowners do not violate
the Constitution by partaking in racial discrimination
against neighbors, state court violates the Equal Protection
Clause by enforcing such private discrimination. That
Clause guarantees equal treatment of all people under the
law, including in their exercise of various property rights.
Restrictive covenants that discriminate solely on the basis
of race are invalid on equal protection grounds if created by
a state or local law. Private actors may create and enforce a
racially discriminatory covenant under the constitution.

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However, improper state action does not only occur when a

court practices unfair procedures but also when it enforces
a substantive rule that violates individual rights under the
14A.
e. Notes: Key fact is that there was an actual transfer of
property and taking of a legal transfer of property away
from the Shelley family based on state court action. The
meaningful distinction is that the enforcement of the
contract meant that there was an undoing of a previous
contract. This case had broad implications, as this expanded
the doctrine.
i. 2 contracts: the restrictive covenant and the
contract to sell the home à the court was nullifying
and reversing one for the enforcement of another
xi. The Joint Participation/Entanglement Exception
1. Private parties will be deemed to be state actors when they are
acting WITH the state or state officers. à How entangled is the
private actor with the government?
a. Ex. if you are a private actor but take large amounts of state
funding; private company using government resources.
2. UNC/Harvard Affirmative Action Case
a. Issue: Using race as a factor in admission is a violation of
the equal protection clause of the 14A?
b. Harvard is a private actor à there claim is coming under
Title XI of a statute
c. UNC is a state actor à they are arguing under the 14A
3. Why is there less discrimination that is occurring if you have to be
a state actor?
a. Statutory law
b. These issues of state action doctrine under the 14A is
coming into to play when there is no statute on the books
(these people are making a direct Constitutional claim
rather than a statutory claim and have been brought earlier
than the statutes); now we have the CRA of 1964 and other
statutes prohibiting private discrimination.
4. Burton v. Wilmington Parking Authority
a. Facts: Person was not served in the private coffee shop
based on race. The Parking Authority (governmental body)
has leased is space to the coffee shop.
b. Issue: Is the coffee shop a government actor?
c. Holding: SC of Delaware said that they weren’t but
SCOTUS said that under the entanglement exception that
the coffee shop with a government actor for purposes of
bringing the 14A claim. There was enough government
subsidizing of things for the coffee shop and the
government is benefitting from the rent of the coffee shop.

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Both the coffee shop and the government are experiencing

mutual benefit leading to joint participation.
d. Coffee Shop Claims: They were not a government actor.
Only part of the cost of the subsidies were from public
funds and there was not enough furnishing of money to
make them joint actors. There is no way that the coffee
shop is acting enough because this is a private business.
They assumed that they were following state law as there
was a DE law on the books that places could refuse service
to some.
e. New Test: You are a state actor even if you are a private
entity when there is a mutually beneficial relationship;
economic and financial synergy; there is benefit from the
government.
5. Edmonson v. Leesville Concrete Co., Inc.
a. Peremptory Strike: Can strike a juror for pretty much any
reason.
i. This cannot be used for discriminatory purposes or
in a manner that violates another Constitutional law.
b. Striking for Cause: Can strike a juror for just cause, when
they think that the juror’s vision is skewed in favor of one
party.
c. Issue: Was the preemptory strike used in a discriminatory
fashion when a private litigant invokes it?
d. Claim: Edmonson said that there has been racial
discrimination under the 14A.
e. Leesville: The private company that issued the strike. They
are claiming that this should not be evaluated under the
14A because they were not state actors.
f. Holding: This was state action and Leesville was acting
like a state actor. The use of the whole preemptory strike
system only happens within the government context, this is
a government process. Any use of this governmental
system makes one so entangled with the government, that
the private parties are acting like state actors.
g. Is there a limiting factor now?
i. Not enough if I just walk into the building and
engage in discrimination, but there might be if there
is government decisions being made.
ii. Hypo: There is a government building that allows
for private parties to reserve rooms in the building.
There are minimal rules and procedures of how the
room can be used. Can I keep someone from
attending the meeting on the basis of race?
1. Yes, this is state action: You are acting as a
state actor and the 14A prohibits you from

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discriminating because you chose to gain the

benefit of the public good. (Parking
Authority case). The public library is like
the parking authority and the library as a
government actor could impose certain
policies that prohibit discrimination. Yet
they fail to impose those limitations, leading
to the idea that there is entanglement leading
to state action. It is all happening within the
space.
2. No, there is no state action: There is no
mutual benefit argument. There is nothing
that is so advantageous like getting tax
benefits (in the coffee shop case) so there is
no joint participation. No, one individual
cannot act as a state actor and the
implications of stating this person is the
government is too broad.
3. Note: We would find this odd to say that the
room can be rented out in a discriminatory
fashion. How many steps is it from here to
say that the private party cannot
discriminate? Is it control or just ensuring
that there is equal protection under the law?
6. NCAA v. Tarkanian (UNLV men’s bball coach)
a. Fact: NCAA claimed that UNLV and the coach violated
their rules and were subject to sanctions. The NCAA acts
as the oversight body of college sports. UNLV did own
investigation into the allegations and found that there was
nothing. NCAA was going to place UNLV MBB on
probation.
b. Tark’s Claims: He did not get a fair process and brought a
14A claim. Claims that UNLV and the NCAA were in joint
entanglement. NCAA was acting under the joint delegation
power from UNLV to act in a way that is punishing him.
UNLV is apart of the NCAA. They are acting together to
carry out this process.
c. UNLV Claims: There is not state action here because they
were acting under the direction of the NCAA, the harmful
action was the private action of the NCAA.
d. Issue: Is NCAA entangled enough with UNLV to make
NCAA a state actor?
i. Why is this not under the public function exception
(Marsh v. Alabama)?
1. No, there is not a total amount of control
from the NCAA like in Marsh v. Alabama.

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e. Holding: No, the NCAA is not a state actor. NCAA and

the UNLV had conflicting thoughts and interest here, so
there was no joint participation. It would have been
different if UNLV wanted a certain outcome and used the
power of the NCAA to carry it out (that is not what
happened here). There is enough of an adversarial
relationship to keep it from being a state actor. This is
known as a mirror image case: UNLV is carrying out the
NCAA process à might have come out differently if this
was the other way away. There was not enough control of
the state actor from the private entity.
XXVI. Bill of Rights (ratified in 1791)
a. These individual rights were not included in the original constitution because it
was believed that the powers listed in the constitution were the only powers of the
federal government; it was unnecessary to explicitly state the rights. By
enumerating certain rights, would imply that the government had all of the other
rights.
b. Barren v. Baltimore
i. Issue: Do the rights listed in the Bill of Rights apply against the states or
just the federal government?
ii. Holding: No, the rights only apply to the federal government. The states
have their own constitution. The states do not have to enforce the
amendments. By the terms of the Bill of Rights, it is only applied against
the federal government, not the states.
1. Textualist analysis: There are some amendments that do not seem
to be directed to anyone. The 1A is only directed to Congress à
does that mean that the President and the Federal judges can
violate your 1A rights? No, it has not been interpreted to mean
that, it has held the federal government generally.
iii. Notes: You cannot go further than what the Bill of Rights allows. The
10A supports the idea that the powers not listed in the rest of the
Constitution are reserved to the states and the people.
1. 10A: “Power nor prohibited by the states” à in the first 8
amendments there is nothing that is explicitly noting what states
cannot do. There are other provisions within the text of the
Constitution itself that explicitly prohibits states power.
2. Both Congress and the states are not named in the Bill of Rights
(except in 1A). There are no actors mentioned, so whom does this
apply too?
iv. To whom does the Bill of Rights apply? The state or federal
government?
1. The states, there is no federal police power so there is no way that
the federal government could have enforced or broken the things
that the B of R was going to protect.

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a. Counter: the B of R was just codifying what many states

already had protected in their own Bill of Rights so it is
clear that this is only applying to the Federal government.
c. Due Process Clause:
i. In the 5A: applies to the federal government alone
ii. In the 14A: in section one there are three separate protections and rights:
privileges and immunities, due process, and equal protection clauses.
XXVII. The 14th Amendment
a. The 13-15A were all passed in a response to the Civil War. These really did a
massive reconfiguration of the balance of power between the federal and state
governments.
b. Goals:
i. Limit state power to stop slavery and other major economic issues
c. Privileges and Immunities
i. This applies to the states (clear at the outset) then it gets tricky.
ii. Art. 4 touches on P + I
1. § 2 touches on state citizens’ right to P + I
2. This arises in connection with the dormant commerce clause (the
OK minnow case and the Montana hunting one)
a. Even in its dormancy, the CC does not allow states to
disrupt the flow of commerce including the P + I
iii. Slaughterhouse Cases
1. Greatly narrowed the P + I clause.
2. Fact: Louisiana passed a slaughterhouse statute that regulated It
did this by creating the Crescent City Livestock Landing &
Slaughter-house Co. (defendant) and gave the company a
monopoly over the entire slaughtering business in and around New
Orleans. It did not regulate how they could operate but stated that
you could NOT operate. It was a state-sanctioned monopoly. You
must go to one of the sanctioned slaughterhouses to butcher the
animals. You must pay a fee to use the house, but the
slaughterhouse owner must also let the other people in at another
rate. The state is proscribing who gets to have the slaughterhouse
and at what cost they get in.
3. Claims: Not brought but how does this implicate the dormant CC
in relation to Dean Milk.
4. Constitutional Challenges: 13A violation: my livelihood is being
a butcher and now I am being forced to hand over a fee to one of
the favored slaughterhouse cases. 14A violation: P + I.
a. Court’s response: This is not the issue that is addressed in
the 13A. This does not apply. P + I response: this only
applies to the citizens of the United States and not the
citizens of the individual states. You can be a citizen of the
US without being a state citizen. Dealing with “born or
naturalized” the Court is discussing slavery and Dred Scott.

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You must also be a citizen of the United States in response

to Dred Scott.
b. Both the 11A and the 13-14A we look to why it was put
into effect; cabining its understanding.
5. Issue: Is there a substance to this phrase (P + I) even though it is
not spelled out?
6. Holding: Lol not really, it applies to the narrow class of cases to
end slavery. “Servitude” is a broader concept than “slavery,” but
the inclusion of this term in the Thirteenth Amendment was solely
for the purpose of forbidding any and all forms of African slavery
in the future. If the 14A were to apply broadly to the plaintiffs in
this case it would expand it far more broadly than the Framers of
the 14A understood.
7. Reasoning: The court is very skeptical that the language of the
states be imputed upon. If 14A and the Art. 4 P + I clause were
read the same it would have massive overhaul of power balances.
There are few express limitations of which the Federal Gov.
imposes limitations on states including the prohibition of ex post
facto laws, bills of attainder, and laws impairing the obligation of
contracts. Those have been incorporated against the states. The
states have been bound by prior precedent in Crandle v. Nevada.
8. Notes: The differences between substantive and procedural
protections
a. Procedural Protections: the government can take
freedoms from you so long as you get a process
b. Substance Right: the government cannot take a right from
you because it is a fundamental right
9. Understanding the P + I after this case: it is super narrow, there is
very little federal P + I, so very few litigants bring claims. The P +
I does not hold a lot of substantive content.
a. J. Thomas does not hold to this view and will write
separately to hold the P + I to have more power than this
case granted it.
10. Does this opinion purport to say that no new fundamental right can
be granted under the P + I?
a. The broad language suggests that the P + I cannot be read
that broad, but the court also says that they do not have to
decide one governing test and provide no limits for what
the P + I clause covers.
11. UNDERSTAND THE ART. 4 P + I FROM THE 14A P + I
a. The Art. 4 P + I is broader and protects against
discrimination from another state by state basis.
d. Due Process à the key clause in granting substantive freedoms (this has
substantive content)
i. “No person shall be deprived of life, liberty, or property without due
process of the law”

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ii. This shows that there can be instances where states can deprive people
of these things if they get due process of the law.
iii. What is process?
1. There must be notice and hearing. You must know about it in
advance and have a chance to counter it.
2. Substantive due process rights do not fall under this understanding.
iv. What is substantive due process?
1. There are some life, liberty, and property rights so fundamental
that no process could ever take them away.
2. Look to the sum total of the Bill of Rights to find that there are
certain rights that needs to be protected.
3. This is a very shifting test based upon the understanding of the
nine justices.
v. Substantive Due Process rights guaranteed by this clause from
McDonald?
1. All of the Bill of Rights à incorporation, all of the amendments
can be applied against the states
vi. McDonald v. Chicago
1. Notes: touches on selective incorporation (individual incorporation
of the bill of rights that are applied against the states)
2. Issue: Does the due process clause of the 14A incorporate the 2A?
3. Holding; Yes.
4. Thomas Dissent: No, this should be done through the P + I.
e. Equal Protection Clause
i. “Nor deny to any person within its jurisdiction the equal protection of
the laws.”
ii. Is there a substance to this right? à a little bit of a substance to it,
because the court has applied that this applied to the federal government
through the 5A DP clause (equal protection of the laws against the
federal government)

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