CONSTITUTIONAL PROVISIONS:

ART I = LEG; ART II = PRES; ART III = JUD

CONST PROV NAME WHAT IT SAYS CASES + TESTS/RULES

2nd Amend. Right to Bear Arms Citizens have right to bear arms Heller; Bruen; Rahimi; Not incorp against states til 2010 McD

5th Amend. Takings; Due Process Against Fed Fed no take priv prop for pub use w/ just compen Kelo; Loretto; Hassid; Lucas; Penn Central; Miller; Horne

10th Amend. Reserved to the States not enumerated power of fed = states U.S. Term Limits v. Thornton

11th Amend. Suits Against States Bars states from most damages suits in fed court Natl League of Cities

14th Amend. Due Process Against States; Privileges No making, enforcing laws that abridge priv + imm, Baker v. Carr; Burton v. Wilmington; Heart of Atlanta
and Immunities for States taking life, liberty, or prop Does NOT apply to private action

16th Amend. Congress’ Power to Tax taxes on incomes w/o app and w/o popul Must be: uniform, direct and prop, no exp

Article I, § 2 House’s Impeachment Power, House has power to charge impeachment Cl. 3: Senate’s Impeachment Power, Sen has pwr to try & remove

Article I, § 6, Cl. 1 Speech & Debate Clause, Cngrsppl can be protec for s&d on floor || Privilege from Arrest Clause: protec from arrest in session, NOT for treason, felony or breach of peace

Article I, § 8 Congress’ Power to Tax and Spend

Article I, § 8, Cl. 1 Uniformity Clause Congress tax for debts/defense/gen welf of US U.S. v. Butler; Indep of other powers of Cong; can tax things can’t regulate. Limits:
10A state sovereignty

Article I, § 8, Cl. 3 Commerce Clause congress power to regulate commerce with foreign, channels, instrumentalities, ppl/things, anything w sub eff on INSTC
among states, and commerce w/ Ind tribe LIMITS: Inactivity, purely intrastate non-economic actvy unless in aggregate

Article I, § 8, Cl. 18 Necessary & Proper Clause Congr=Power to make laws which nec and prop McCulloch v. Maryland; United States v. Comstock

Article I, § 10, Cl. 1 Bar on states entering treaties No State shall enter into any Treaty, Alliance, or Zschernig v. Miller; Ct can strike law bc it “touched on the field of foreign affairs
Confederation which Const confers to congress and the president”

Article II, § 2, Cl. 2 Appointment Power pres nom/app jud w “advi/cons” of Sen Seila Law; Morrison v. Olson

Article II, § 2, Cl. 2 Treaty Power President w/ advice + consent of Sen. BIND as US v. Curtiss-Wright Exp Corp; unconst delegation of leg power to the pres may be
internl law; Pres ability to neg l8r w/o apr by Sen sustained if the excl goal is to prov relief during foreign conflict

Article III, § 2 Judicial Grant of Authority cat of cases SCOTUS hear: orig & app Marbury v. Madison; leg can’t extend jx power (§13 Jud Act)

Article III, § 2, Cl. 1 Standing Cases or controversies Lujan v. Def of Wildlife; No standing = no jx; No taxpayer grnt

Article III, § 2, Cl. 2 Exceptions Clause with such except/undr regs as Congr shall make Ex Parte McCardle; Fed cts have limited jx, if Cong no grant jud
power≠exst

Article IV, § 1 Full Faith & Credit Clause Must give ff&c= acts, jud decisions of other states V.L v. E.L.; Superpower effects Cl=prescribe manner acts approved

Article IV, § 2, Cl. 1 Privileges and Immunities Clause No OOS & INS treat differently; protects states Does state reg sig burden OOS citizens? Did state have a legit or protect purpose?
from discriminating against each other Does the state have subs reason to discr?

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Article IV, § 4, Cl. 1 Guarantee Clause guarantee republican form of gov. Baker v. Carr

Article VI, § 2, Cl. 2 Supremacy Clause FED LAW IS SUPREME LAW = All treaties, statutes

13, 14, 15th=Reconst 5, 6th Amend = part inc amend 1, 2, 4, 8th Amend = fully inc amend 3, 7th Amend = not inc amend

IMPORTANT CASES
CASE SUBJECT QUICK FACTS RULE/TEST

Marbury v. Madison Judicial Review Π used §13 Jud Act of 1789 to get writ of mandamus Est Jud Rev: SCOTUS has authority to review laws and legis acts to see if
to sue Δ(sec/st) for not delivering Πs commission for constitutional; Jud’s job to say what the law is
fed judge appt

Martin v. Hunter’s Lessee Judicial Review: Rev St Ct Π sued Δ, VA SC held for Δ and SCT rev’d; VA ct did Est App Rev: Article III of Const, SCOTUS has auth to exercise app rev of
Decisions not respect ruling, said SCT no auth to do that state-court decisions.

Ex Parte McCardle Limits on Jud Auth Π relied on stat to appeal deny of writ of HC to SCT; Exceptions Cl: Fed courts have limited jx, if Cong has not granted jud
while pending, cong repealed stat giving SCT auth power=doesn’t exist

Michigan v. Long Justiciability Δ was victim of unr s&s, MISC held for Δ an basis of Adeq and indept: SCT cannot rev st ct dec that rests on adeq and indept st
fed law and Π appealed grounds; if no plain stmnt w/i 4 corners that dec based on st law, asumd st ct
relied on fed law

U.S. v. Comstock Necessary & Proper Clause Fed law allows civ confine of menty, sex dang inmates N&Proper Cl: Expansive power on Congr to enact leg that is convenient or
beyond crim sentence useful. Congr powers are limit and enumer, N&Π gives Congr ability to enact
law rationally related to implement const enumer power; link from means to
end can be long

Kelo v. City of New London Individ Rights: Takings CT appr new devel, using eminent domain auth to Public Use: St’s use of eminent domain to take prop from priv indiv and
seize priv prop to sell to priv develprs. Purpose=jobs/ redistribute it to other priv indiv=public use under 5A req if rationally related to
tax rev. conceivable public purpose.

Miller v. Schoene Individ Rights: Takings VA Act req landowners to remove cedar trees infected Nuisance Exception: If st has to make choice betw saving 1/2 types of
by rust that harms apple orchards property, st does not violate DPC by deciding on destr of one prop to save
another that’s more valuable to pub. Pref to pub intrst over priv intrst of prop
owner=valid undr st's pol pwr, even if result=destr of priv prop owner's interest.
VOCAB
Privileges and Immunities Clause, The governmental action or legislation must further an important government interest in a way that is substantially related to that interest.
Intermediate Scrutiny Test 1A, Sex based discrimination Means and ends need to be substantially related.
When the Supreme Court says the Constitution means something, for all subsequent cases that is what the Constitution means. Parties not
Judicial Supremacy Judicial Review involved in the specific case are still bound by decisions related to the Constitution
Const questions that don’t threaten The governmental action or legislation must be rationally related to a legitimate governmental interest; Hard for the government to lose,
Rational Basis Test fundamental rights, Equal Protection only if something very off is occurring; Just need legitimate interest, even if not provided, the court will make one up
DCC Facially Discr; Congr burden The governmental action or legislation must be narrowly tailored to further a compelling government interest by the least restrictive means
Strict Scrutiny Test fundamental right, Discrimination possible. Government is likely going to lose; Compelling government interest, not just important

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 TABLE OF CONTENTS
I. JUDICIAL REVIEW………………………4
II. JUSTICIABILITY…………………………4-6
III. FEDERALISM…………………………….5-12
IV. SEPARATION OF POWERS…………….12-15
V. STATE ACTION…………………………..15-16
VI. INDIVIDUAL RIGHTS…………………..16-17

JUDICIAL REVIEW
I. GENERALLY (See Marbury v. Madison; Martin v. Hunter’s Lessee)
A. RULE: SCOTUS’ interpretation and holdings of the constitution and legislative action are SUPREME LAW OF THE LAND, final and
binding→ Original Jurisdiction
1. Does not apply to state constitutions
a) State’s have final word on what their constitutions say so long as they do not violate the constitution
2. Congress CANNOT pass law overturning judicial decisions or otherwise inconsistent with them
3. Congress cannot expand Court’s original jurisdiction or authority (like they did w/ §13 of Judiciary Act of 1789)
B. RULE: SCOTUS has the authority to review state court decisions (Martin, Art. III, §2, Cl 1) → Appellate Jurisdiction
1. Congress can make exceptions to the Court’s appellate jurisdiction

JUSTICIABILITY
UMBRELLA: Article III limits the jurisdiction of SCT by “cases and controversies” language. The Court will not hear issues that the Constitution leaves to
the discretionary or enumerated powers of other branches. To be brought before the court, the issue must be justiciable (committed to the court). Requiring
justiciability ensures concreteness (the court is reviewing actual disputes by actual parties, courts best serve when concrete, factual disputes exist) and judicial
restraint, enforcement of separation of powers (keeps court out of other branches jobs).
I. STANDING
A. STEP #1- RULE: The standing requirement arises from Art. III, §2, Cl. 1 limit on the Court’s jx to “cases and controversies”. Π must have
standing (right person to bring the case) to raise an issue with the Court. Π must be able to demonstrate they have a stake, themselves, in the
outcome of the case. Standing is required in all stages of litigation, including appeal. Standing promotes judicial restraint and furthers the
purpose of separation of powers through limiting judicial effort to “cases and controversies” between parties who have a valid stake in the
controversy because they have actual injuries that can be remedied by the judicial process. Π must have (1) an injury in fact; (2) causal nexus;
and (3) redressability. If there are multiple Π’s, each must have standing.
B. STEP #2- IS THERE STANDING? ***IF an advisory opinion→ NO STANDING, not an actual case/controversy, just asking for advice
on legislative or executive action
1. Injury in Fact→ Π suffered a concrete, particularized, and individual injury in fact; invasion of a legally protected interest
(1) Lujan v. Defenders of Wildlife→ (Def sued claiming “risk to endangered species” as inj) A party does not have standing to
litigate a generalized grievance against the government if she suffered no personal injury other than the harm suffered by
all citizens.
(2) Concrete: Actual, exists in fact (has happened or is imminent)
(a) Mere ideological objection is NOT an injury; EXCEPTION: See Taxpayer Standing
(3) Particularized: Injury affects Π in a personal and individual way; NOT a generalized injury of the public, Π needs to suffer more
than the public at large
(4) Legally protected: Recognized by law
(a) Examples: quality of the environment, character of neighborhood, consumer choice, personal or economic interests.
(5) Usually met if there has been a violation of any Π’s rights that are recognized by the Constitution, federal or state statute, or by
common law; NOT always true in cases dealing with statutorily conferred rights
2. Causation/Causal Nexus→ The injury must be “fairly traceable to the challenged action of Δ and not the result of an independent action of
some 3rd party not before the court” (Lujan)
a) Causal connection between the injury and the conduct complained of
3. Redressability→ There must be adequate remedy which the Court can provide. Relief sought must be able to eliminate your injury.
a) Past injury = $; Future injury = injunction
b) Problem with redressability arises when (1) Π does not name the party who should supply the relief; OR (2) the court decision
wouldn’t provide the relief (Lujan)
(1) It must be likely as opposed to merely speculative that the injury will be redressed by a favorable decision
c) City of Los Angeles v. Lyons→ Police chokehold case; Absent a sufficient likelihood that he will again be wronged in a similar
way, Π is no more entitled to an injunction than any other citizen of Los Angeles
C. STEP #3- WHAT TYPE OF STANDING?
1. Taxpayer Standing: Federal and state taxpayers have no standing under Article III to challenge tax or spending decisions simply by virtue
of their status as taxpayers
a) EXCEPTION: A taxpayer will be granted standing to challenge government action IF: (1) They can establish a nexus between their
status as a taxpayer and the challenged government action; AND (2) A nexus between that status and the precise nature of the
constitutional infringement claimed; AND (3) Show that “The challenged enactment exceeds specific constitutional limitations
imposed upon the exercise of congressional taxing and spending power and not simply that the enactment is generally beyond the
powers delegated to Congress by Article 1, Section 8” (Flast v. Cohen)
2. Prudential Standing- Third Party Standing: Generally, a party who has established standing may only assert injuries that they
themselves have suffered
a) EXCEPTION: (1) Substantial/special relationship with third party; (2) Proof of impracticability of third party asserting their own
right; (3) Risk of third party rights being threatened if Π is not allowed to litigate
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 (1) Singleton v. Wulff: (dr/pt) A plaintiff has standing to bring a lawsuit on behalf of a third party’s right when that right is
inextricably bound up with the activity the litigant wishes to pursue, and when it is unlikely that the third party can or will sue on
his or her own behalf.
3. Prudential Standing- Zone of Interest Standing: Π lacks standing to sue under a statute unless Π’s injury is of the type the law was
designed to protect
a) Lexmark International Inc. v. Static Control Components: (printer/microchip resale) Π has standing to sue for something (false
advertising) under a legislative act/statute (Lanham Act) if Π’s zone of interests is within those protected by the statute and Π’s
injuries are proximately cause by Δ’s violation of the statute
4. Organizational Standing: If an organization itself is the injured party, it’s not third party standing
a) For an organization to have standing, they must establish that, (1) The members of the organization could sue independently; (2) The
interests asserted are central to the organization’s purpose; (3) Neither the claim nor requested relief requires members participation in
suit
(1) Sierra Club v. Morton: (Π was org intrs in land conservation, dev of natural land proposal by Disney) A membership
organization’s mere interest in a problem, without showing that its members would suffer actual injury, is not sufficient to show
that the entity has standing to seek judicial review of an action by a federal agency.
5. Congressional Standing: Generally, legislators do not have the authority to challenge legislation they disagree with
a) EXCEPTION: Legislative branch trying to vindicate its interests when another branch encroaches on it; Π brings action saying the
other branch’s action is invalid because it violates separation of powers doctrine
(1) Raines v. Byrd: (challenging line-item veto) LIV only challenged them in their institutional capacities, not personally. For
congressional standing, the legislator bringing suit must have standing themselves (sufficient personal stake/concrete injury)
6. Prudential Standing- Parens Patriae Standing: A state can litigate to protect its quasi-sovereign interests (concern the state as a whole,
distinct from welfare of individual citizens) in two ways: (1) Against a private party or other state; (2) Against a federal government/agency
a) MA v. EPA: (EPA refused to pass regs after ClAirAct) To establish parens patriae standing: (1) State must articulate an interest apart
from the interests of particular private parties, (i.e. the State must be more than a nominal party); (2) State must express a quasi-
sovereign interest; AND (3) State must have alleged injury to a sufficiently substantial segment of its population
(1) A state has a quasi-sovereign interest in the health and well-being, both physical and economic, of its residents in general and in
not being discriminatorily denied its rightful status within the federal system
II. RIPENESS
A. RULE: (Art. III) The requirement of ripeness serves to exclude from judicial review matters that are premature for adjudication (those which
are merely speculative and injuries that may never occur). In order to bring a case, Π must have either (1) already been harmed; or (2) have an
immediate threat of harm. To determine ripeness, analysis of three factors is necessary: (1) Probability that the harm will take place; (2)
Hardship to the parties if immediate review is denied; (3) Fitness of the record for resolving the legal issues presented.
1. Hardship to the parties if immediate review is denied: Whether a party would have to risk substantial hardship to provoke enforcement of
law
a) Abbott Labs v. Gardner: (Stat for relabeling of prescription drugs, would cost Π $$ and civil/criminal penalties) An action may
become ripe even before a new law goes into effect or enforcement thereof begins if Π will need to take action in anticipation or
preparation for the new law going into effect and being enforced
2. Fitness of the record for resolving the legal issues presented: Generally, an issue is not fit for judicial decisions if it relies on
uncertain/contingent future events
a) Poe v. Ullman: (suits against CT’s atty for stat banning birth control/advice re) Even though the statute banned, no one had ever been
prosecuted. For a lawsuit to be ripe, the injury threatened must be relatively immediate and certain to occur without court intervention.
III. MOOTNESS
A. RULE: (Art. III) The limit of mootness serves to exclude from judicial review matters that are brought after the case/controversy has expired
(when a real, live controversy no longer exists). Defunis v. Odegaard
1. Examples: Death of a party, law is amended/repealed, material facts change case, settlement, Π no longer objects to Δ’s conduct
B. EXCEPTIONS:
1. Capable of Repetition Yet Evading Review: No moot if there is a threat that the behavior will continue or happen again
a) Requires that (1) The life of the controversy is of an inherently limited duration, so that it is likely to always become moot before the
federal court litigation is completed, (the life of the controversy is too short to be fully litigated prior to its termination), AND (2) The
injury must be of the type that is likely to happen to THIS Π again
(1) Defunis v. Odegaard: (Law school admission case, Π received injunct and was in final sem when case got to SCT) Court may not
decide an issue in the absence of an actual case or controversy. An issue is moot, and not capable of review, if its resolution
would no longer affect the rights of the litigants at the time they are before the court, as opposed to when the case was initiated.
2. Collateral Consequences: When a significant aspect of the controversy between the parties has dissipated because of a change in law or
facts, but there remains at least some residual aspect of the dispute for which a judicial remedy may provide relief (i.e. damages)
3. Voluntary Cessation of Challenged Activity: Moots a case only if it is “absolutely clear” that the wrongful behavior could not
“reasonably be expected to re-occur.” The burden is on the party that is asserting mootness, and the court has made this a high burden. (i.e.
Δ decided to stop action in controversy when the case is brought up)
IV. POLITICAL QUESTION
A. STEP #1- RULE: Federal courts choose not to hear political questions that are better served to be answered by other branches of government
B. STEP #2- WHAT MAKES AN ISSUE A POLITICAL QUESTION? An issue not proper for adjudication by a court because it should be
resolved by the political branches of government. (Baker v. Carr) Non-justiciable political question- 1/6 tests must be satisfied:
1. A matter is textually committed under the Constitution to another branch
a) Nixon v. United States→ (JUDGE Nixon, not president; refused to resign after indictment, congr moved to impeach, Sen
appointed sp committee for evid and then report findings to the full Sen. Π claimed violation of the constitutional requirement
that all impeached persons be “tried by the Senate.”) The constitutionality of Senate impeachment proceedings is a non-
justiciable political question incapable of judicial adjudication.
(1) Other ex: Congress’ power to expel a member, or to judge qualifications of members (Powell v. McCormack)
2. A lack of judicially discoverable and manageable standards for resolving the issue
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 a) Baker v. Carr: (TN resident challenging malapportionment) A challenge to malapportionment of state legislatures brought under the
Equal Protection Clause is not a political question and is thus justiciable.
(1) Other ex: const amend, gerrymandering, disputes w/i political parties, Guarantee Cl, foreign aff (Goldwater v. Carter), military
3. An impossibility of deciding the issue without making an initial policy determination of a kind not suitable for judicial discretion
4. A lack of respect of respect for the other branches of government in undertaking independent resolution of the case
5. An unusual need for unquestioning adherence to a political decision already made
6. The potential for embarrassment for differing pronouncements of the issue by different branches of government

FEDERALISM
UMBRELLA: Federalism establishes the relationship between the federal government and state governments. Federalism functions to place limits on federal
and state power through constitutional provisions, default rules, limiting the federal legislative power, and limiting state power.
I. SOURCES OF LEGISLATIVE POWER
A. GENERALLY/DEFAULT RULES
1. RULE: The Constitution authorizes Congress to regulate in limited, enumerated areas (many in Art. I, §8). Congress does not have
inherent powers because that is inconsistent with the constitutional principle of a limited federal government. These enumerated powers do
not confer on congress the ability to regulate police powers, general welfare (w/ exception of spending), or what is necessary and proper
(standing alone, must be used in conjunction with another power).
a) Congress doesn’t always say what power they’re exercising, and sometimes they say the wrong power (i.e. Sebelius pt. 1 & 2)
b) ASK: Is there some other limit that comes into play when exercising this power in this way?
c) TEST: Rational basis
(1) Relatively deferential to congressional action
(2) Whether ends are within constitutional authority and rationally related to the ends→ NOT necessarily tailored
2. DEFAULT RULES: When the constitution doesn’t say if the federal government or the states have power, courts sometimes need “default
rules” because POWER IS A ZERO SUM GAME, HAS TO GO SOMEWHERE (see chart for cases/rules)
B. NECESSARY AND PROPER CLAUSE
1. RULE: (Art. I, §8, Cl. 18) The Necessary and Proper Clause grants Congress the authority to make all laws that are necessary and proper
for executing any power granted to any branch of the federal government. It is NOT an independent source of federal legislative authority,
it just gives Congress broad discretion to choose the mode of execution of constitutional powers.
a) McCulloch v. Maryland: (est of ntl bank) The use of the N&P Cl must be rationally related to the
accomplishment of a legitimate, constitutionally authorized objective; If there is a minimally plausible
connection between objective of legislation + the means = ✓
(1) BUT the court can separately scrutinize the objectives to ensure they are constitutional
(2) To establish rationality, Congress needs (1) legitimate end; (2) end within scope of constitution (i.e. can’t enact a law that is
prohibited by another const prov); (3) means must be appropriate (“plainly adapted to the end”); and (4) means within the
letter and spirit of the Constitution → FIRST INSTANCE OF RATIONAL BASIS REVIEW
2. APPLICATION: Grants Congress legislative authority to enact a federal statute if the statute constitutes a means that is rationally related
to the implementation of a constitutionally enumerated power
a) Inquiry = whether the means chosen are “reasonably adapted” to the attainment of a legitimate end; large discretion as to means to
execute given powers
C. COMMERCE CLAUSE
1. STEP #1-RULE: (Art. I, §8, Cl. 3) The Commerce Clause confers upon Congress the power to regulate commerce with foreign nations,
commerce among the several states, and commerce with the Indian tribes. Commerce is defined as any activity engaged in the commercial
sale of goods and services, including marketing, purchase, and transportation. To exercise the commerce clause, the commercial activity
must be occurring in or affecting more than one state. In regulating commerce, congress has the power to prescribe the rules under which
commerce shall be transacted, including the power to prohibit certain transactions. Under the CC, Congress can regulate channels,
instrumentalities, people and things, and any intrastate economic activity that substantially affects interstate commerce.
a) Precursors that are important
(1) Marbury v. Madison: Necessary and Proper Clause is a means to an end to achieve a goal of legislation
(2) McCulloch v. Maryland: Is the goal Congress is trying to achieve within the Article I allowance? If so, were the means chosen by
Congress rationally related to the goal the legislation is attempting to reach? The constitutional means chosen cannot be a pretext
for an unconstitutional end
(3) United States v. Comstock: The chain/link from means to the end can be long
2. STEP #2- IS THIS EVEN COMMERCE?
a) ISSUE SPOTTING:
(1) If it is the beginning of a stream of commerce: NLRB v. Jones Manufacturing is just the beginning of a stream of commerce.
The activity that Congress wants to regulate may occur substantially before the interstate movement or long after the interstate
commerce. Congress can regulate anything as a means to an end of regulating interstate shipment of goods.
(2) If motive and purpose are being considered: US v. Darby Says motive and purpose are no longer considered. Expanded ISC to
touch intrastate activity that substantially affects ISC, as long as it does not violate the Const; Wage and hour provisions are
means reasonably related to the end of banning the interstate shipment of goods manufactured in substandard conditions
(3) If Congress doesn’t regulate it, there might be a coordination problem: US v. Darby, Hard to make a minimum wage in one
state if other states don’t have one, would lead to a race to the bottom and unfair regulation.
(4) If Congress is posing conditions on an activity that substantially affects ISC: Wickard v. Filburn; Gonzales v. Raich
Congress can impose whatever conditions it wishes upon the privilege of engaging in an activity that substantially affects ISC, so
long as the condition does not violate the Const. Congress can regulate anything as a means to an end of regulation of ISC.
3. STEP #2.5- OTHER CONSIDERATIONS:

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 a) Is this regulation an area of traditional state concern? This is important because we do not want to blur lines of political
accountability. Crime, family law, and education are traditional state or local concerns- Lopez and 10A. However, these can be
outweighed by showing that a national solution is needed and that one state’s choice heavily affects other choices.
b) Should we give deference to Congress? Motive is irrelevant. Even though a motive may seem suspect, Ct will not interfere as long
as the CC is applicable
c) Is this a national necessity? Nec & Prop Cl (Ex. States not doing a good job in regulating violence against women so there was a
need for the national government to step in but didn’t become important in analysis of constitutionality of Act and effect in ISC in
Morrison and it was still held unconst)
d) Is there a coordination problem? There is a legitimate coordination problem if this might frustrate the purpose of other states. In
Darby, the Ct argued that without coordination, businesses would relocate to states without minimum wage/hour laws to give
themselves an unfair advantage. Travel usually presents coordination problems, such as could go to neighboring state. If it would be
difficult to regulate on state by state basis coordination problem.
e) Is the act commandeering a State function? Congress cannot commandeer the state legislative process to adopt a federal regulatory
program via the CC. This violates the 10A. This set limits on regulating state’s activities. See if the act is compelling or prohibiting
state/local conduct.
(1) Exception: Generally applicable law that applies to states as well as individuals is okay and does not violate 10A. (Garcia).
Cannot target only state/local action.
(2) Not commandeering if just applying federal law
(3) ANTI COMMANDEERING: Congress attempting to regulate STATES in themselves, telling the states to do or refrain from
doing something
(a) Commandeering: Unequivocally dictates what a state legislature may or may not do
(b) Preemption: State law confers rights or imposes restrictions that conflict with federal law, resulting in Supremacy Clause
(c) VA Surface Mining: (act to protect the public and environment from harmful effects of surface coal mining)
(i) Congress’s Commerce Clause power extends to regulating activities (purely intra state land use regulation) that
substantially affect interstate commerce by harming the environment in multiple states. Require challenger of
Congress’ exercise of the ICC to meet a four element test:
(a) Showing that the challenged regulation regulates the “states as states”
(b) Fed regulation must address matters that are indisputably “attributes of state sovereignty”
(c) Must be apparent that the states’ compliance with the federal law would directly impair their ability to
“structure integral operations in areas of traditional government functions”
(d) Apparently successful challenges fail if the federal interest advanced by the challenged law justifies state
submission
(d) New York v. US: (Low-Level Radioactive Waste Policy Amendments Act to help address issues of low-level radioactive
waste disposal among the states, 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) Congress CAN'T order State Government to legislate. There are two ways Congress may urge a state to adopt a
legislative program consistent with federal interests:
(i) As part of its spending powers, Congress may attach conditions on states’ receipt of federal funds, OR
(ii) 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.
(a) These options allow states to decline compliance with federal regulatory standards if state citizens decide a
federal policy is contrary to local interests.
(b) States can’t consent to an unconstitutional exercise of congress’ power (i.e. state’s can’t consent to tyranny)
(e) Printz v. US: (Brady Act, Sellers of firearms would report sales to their county Chief Law Enforcement Officers (CLEOs).
CLEOs would then conduct background checks and confirm the lawfulness of the sales) Congress cannot direct state
officials to carry out directives of federal legislation under the ICC; CAN'T require employees to enforce federal laws
(i) The Constitution creates a system of dual sovereignty whereby the states and the federal government are independent
entities with different governmental functions; 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.
(f) Reno v. Condon: (DMV disclosure of info) Congress may regulate states’ activities under CC provided that the regulation
does not require the state to enact any laws or regulations and does not require state officials to assist in the enforcement of
federal statutes regulating private individuals.
(i) To be protected by anti- commandeering it has to be essential function of the states and not generally applicable to
the people/corporations
(g) Murphy v. NCAA: (sports gambling banned by PAPSA, NJ allowed) The Constitution does not empower Congress to subject
state governments to direct orders. The Constitution confers on Congress the ability to regulate individuals, not states. Anti-
commandeering principles are important because:
(i) Separation of powers protects individuals;
(ii) Easily allows for political accountability (if state citizen doesn’t like decision, they don’t vote for rep); and
(iii) Avoids a situation where Congress doesn’t have to account for the financial implications of its actions
(a) PAPSA is a direct violation of state sovereignty and preemption does not apply because Congress is regulating
the state, not private actors
f) Would it threaten Federalism and political accountability? If legislation blurs the line of political responsibility, then it may result
in confusion as to whether to lay blame on the state or the federal govt.
4. STEP #3- WHAT IS CONGRESS SEEKING TO REGULATE?

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 a) Channels: (US v. Darby FLSA, Gibbons Boats in NY/NJ) Power to prescribe the rules of conduct to be applied to any activity that
can rationally be characterized as constituting interstate commerce (anything that crosses state lines physically or electronically);
terms and conditions on which goods/services are sold interstate and restrict the type of goods sold from one state to another
(1) Can regulate and protect the instrumentalities of INC, even though the threat may come only from intrastate activities (e.g. labor)
b) Instrumentalities: (Southern Railway, Heart of Atlanta) Railroads, airlines, trucking companies; includes power to protect these
instrumentalities from threats that come from interstate or local activity (safety standards on carriers that use the same railway tracks,
airspace, or highways)
(1) Rationality Test: from Heart of Atlanta. Congress must have a rational basis for finding that this activity substantially relates to
ISC & the means selected to achieve the end must be reasonable.
c) Intrastate economic activity that substantially affects interstate commerce: (Wickard) Purely intrastate activity that substantially
affects interstate commerce can be regulated (production of goods sold interstate)
(1) Aggregation principle only applies to activities that are economic/commercial in nature
(2) Not economic/commercial: Lopez guns in schools, Morrison civil remedies for victims of gender motivated violence
d) People and Things
5. STEP #4- WHAT IS THE LINK BETWEEN THE THING BEING REGULATED AND THE EFFECT ON COMMERCE?
a) Lopez shift: Increasing deference to the court prior to Lopez began to change here- making Congress do more of the work
(1) We aren’t just going to “find” a connection→ “the days of the Court doing Congress’ work for it are over” - Rehnquist
majority opinion; Indicated big shift from court’s previous willingness to find a connection between regulation and ICC
b) Aggregate Effect/Principle: Wickard Congress may regulate a class of activities even if they are wholly intrastate activity, even when
the individual is not engaging in commercial activity Because, taken in the aggregate, going unregulated, the activity would have a
substantial effect on interstate commerce; Congress is free to conclude that if they do not regulate an individual, inaggregate,
uncommercial activity, they cannot regulate the aggregate effect of a similar activity
c) LIMIT: Gibbons v. Ogden: The Federal commerce power reaches only interstate commerce, not activities wholly w/in a given State.
Regulation of wholly intrastate commerce is reserved to the several States by the 10th Amendment.
(1) Congress cannot legislate if actions: (1) are completely internal to the state, (2) do not affect other states, and (3) do not require
Congressional regulation
(2) The Protective Principle: Intrastate commerce can be regulated when necessary to protect instrumentalities of interstate
commerce because most activity Congress wants to regulate is intrastate (because people engage in commercial activity where
they live, usually)
d) EXCLUDED: Inactivity, purely intrastate non-economic NOT aggregate
(1) NFIB v. Sebelius: (individual mandate under the ICC requiring individuals to purchase health insurance or pay a penalty on their
income taxes) Inaction does NOT equate to commerce. Congress has the power to regulate classes of activity, not inactivity.
Wickard and Gonzales do not control because there is no action, the ICC cannot control inactivity.
(a) Purpose of this decision: to draw a line somewhere of what Congress can regulate under the ICC. Violating state
sovereignty is a vivid limit that puts the brakes on ICC because it’s a violation of the 10th Amendment.
(b) Congress CANNOT regulate inactivity, that’s commandeering individuals to become active in commerce by purchasing a
product, on the ground that their failure to do so affects interstate commerce. Construing the ICC to allow Congress to
regulate individuals doing nothing would open a vast domain to congressional authority. The framers gave Congress the
power to regulate commerce, not compel it.
D. SPENDING CLAUSE
1. STEP #1- RULE: Art 1, § 8 gives Congress the power to spend. It’s a fairly broad power that gives Congress the ability to condition the
receipt of federal money by the States on their promise to spend it a certain way. Congress may spend for the general welfare of the nation
and to pay debts. Independent power to spend; Congress has the power to spend for the general welfare or to further one of Congress’s
other enumerated powers
a) Conditional Spending: Congress can give federal funds to the states with conditions but must be a close connection between the
spending and regulation. They can specify a condition but not regulation. A regulation is valid only if it falls under delegated powers.
(1) U.S. v. Butler (Ag Adjustment Act regulated production of crops from farmers in exchange for cash payments) Spending power is
not without limits. Any congressional power to tax and spend is limited by Tenth Amendment state sovereignty concerns.
(a) Violates 10A by seeking to invade states’ rights to regulate and control their own agricultural production. Congress has no
power to regulate and control agricultural production and they can’t invent that power through taxing and spending.
b) Congress can command states to do something on conditions that funds are used for intended purpose. Can impose as many conditions
as will render means effective to attain justifiable end (general welfare), but cannot be overly coercive. Rational basis scrutiny
(1) Conditions essentially a trade of constitutional liberties for benefits
(2) Can create incentives/mild encouragement, but ideally not requirements. Magnitude of penalty cannot be excessive
(3) Conditions are generally more acceptable if the state has a choice
2. STEP #2- CONDITIONS ON SPENDING: Use of the Spending Clause to encourage (SD v. Dole)
a) Rule: Congress may use this power to regulate/encourage indirectly what it cannot regulate directly. REQUIREMENTS:
(1) Condition must protect the general welfare (Court is deferential to Congressional judgment w/ regard to what is necessary for the
general welfare)
(2) Conditions must be unambiguous (Clear such that the States can make informed choices).
(3) Condition must be related to the spending- spending must be related to a federal interest or national project or program and
cannot be too broad (e.g. SD v. Dole- drinking age is related to highway safety)
(4) No independent constitutional bar: Cannot coerce into unconst. conduct. Congress cannot use the money to circumvent the
Const. States must have a choice. (you can’t induce a state to do something that would be unconst).
b) Other Considerations:
(1) Doesn’t matter if the regulatory impact of the spending/tax could be achieved directly by the use of another enumerated power.
(2) Congress can condition funding on a state’s waiver of Sovereign Immunity
3. STEP #3- OVERSTEP? ENCOURAGEMENT OR COMPULSION
a) If there is coercive pressure = compulsion. States must have a choice. Distinguish between encouragement and compulsion.
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 (1) NFIB v. Sebelius (Medicaid expansion provision, which conditioned continued receipt of federal Medicaid funds on states
expanding their eligibility requirements for the program) Congress can create incentives for compliance with federal regulatory
schemes, but cannot deprive states of a legitimate choice on whether to adopt federal mandates in exchange for federal funding
(a) Threatens political accountability. If states have no actual choice, state reps are responsible for a decision they were forced
to mandate and congress has no accountability.
(b) The Medicaid expansion provision is unconstitutional because the federal government cannot withhold existing Medicaid
funding from states that choose not to participate. The Act does not offer the states a genuine choice, because they need to
accept a basic change in the nature of Medicaid or risk losing all Medicaid funding, which would equate to up to 20% of
state’s overall budgets; this is an impermissible restraint on states
b) If lines of accountability are being blurred = can't do it.
E. TAXING CLAUSE
1. STEP #1- RULE: Art 1, § 8 gives Congress the power to tax. Congress may tax anything as long as the tax is reasonably related to raising
revenue, regardless of any other motives Congress may have had. 16A gives Congress power to tax w/o limitation, gives tremendous
authority to the national gov. Congress can tax but cannot regulate.
a) State can’t tax the fed gov (McCullouch v. Maryland)
2. NFIB v. Sebelius: (individual mandate/tax penalty) The individual mandate’s penalty provision operates more like a tax imposed on those
opting against purchasing coverage. Because the tax is assessed just like other taxes, based on income, and collected by the IRS, the fact
that Congress calls it a penalty is irrelevant. The Court interprets legislation as constitutional if possible, and the individual mandate can be
saved by interpreting the penalty provision as a valid exercise of Congress's power to tax. “The essential feature of any tax is that is
produced at least some revenue for the Government” → irrelevant that it’s called a penalty if it functions like a tax
3. LIMITS:
a) Uniformity→ geographically; tax must operate with the same force and effect in very place where the subject of it is found
b) Direct taxes and proportionality
(1) Capitation→ tax paid by every person regardless of property, profession, or any other circumstance
(2) Direct tax→ imposes on the ownership of real or personal property
(3) Excise/indirect tax→ imposed on an activity or on the exercise of a privilege
(4) State by state revenue generated by capitation and direct taxes must be apportioned among the states according to the population
of each state
c) Prohibition on taxes/duties laid on exports: Art. I, § 9, cl 5 (see sheet for explanation on clause)
(1) Example: Congress imposes a nondiscriminatory tax on all tobacco products that are not yet in export transit, regardless of
potential export status, even though the products are ultimately intended for export = OK
(a) But, imposing a tax on premiums paid for insurance to ship goods to foreign countries = NOT OK
F. TREATY POWER
1. STEP #1- RULE: Art 2, Sec 2 President has the power, by and with the advice and consent of the Senate, to make treaties provided 2/3 of
the Senators present concur. Art 6: Treaties, current & future, under the Authority of the US, shall be the supreme law of the land.
a) Missouri v. Holland (Migratory Bird Act) tells us that Treaty Powers are not limited by the 10A and Congress can use the treaty power
to regulate things which it could not by regular legislation
2. STEP #2- CAN CONGRESS REGULATE THROUGH A TREATY?
a) Congress can regulate through a treaty as long as:
(1) A state law that conflicts with a treaty is invalid.
(2) Treaty cannot violate Const.
(3) Treaty cannot trump individual rights
G. PROPERTY CLAUSE
1. STEP #1- RULE: (Art I, Sec. 8) Power to regulate and protect land; dispose of, make needful regulations with reference to territory or
property belonging to the US. Congress has plenary authority over federal land in the state. Without limits, comparable to state police
power. Federal ownership does NOT withdraw land from jurisdiction of the states
2. STEP #2- IS THIS FEDERAL PROPERTY?
a) Federal property includes:
(1) Real, personal, and intangible property
(2) District of Columbia (D.C.)
(3) Federal parks
(4) Military bases
3. STEP #3- APPLICATION
a) Example: Congress has police power over D.C. (or other federal property), rights usually reserved for states but DC isn’t a state
b) Kleppe v. New Mexico: (Burros/wild horses case) Congress can regulate to protect wildlife on public lands. States still have police
power over land w/in their jurisdiction
(1) Default that the federal government and states have concurrent power over land under the Property Clause BUT federal can
acquire EXCLUSIVE power by (1) state consent OR (2) nonconsensual acquisition followed by state cession of authority
II. LIMITS ON THE LEGISLATIVE POWER
A. STATE AUTONOMY/10TH AMENDMENT
1. STEP #1- RULE: 10A provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it, are reserved
to the States respectively, or to the People." This Amendment today seems to limit Congress’ ability to regulate the states.
2. STEP #2- IS CONGRESS PASSING A GENERALLY APPLICABLE LAW?
a) IF YES: Not infringing on 10A. Cite Garcia which involved generally-applicable law under ISC theories that applied to all parties
where the states were treated the same as private parties.
b) IF NO: Cite Garcia-Protection of states comes from Congress and not from the Courts. Congress can regulate state and federal gov. It
is not the role of the cts to interpret the Const. Very deferential to Congress.
c) Cite NY v. US, when Congressional action applies to the States as States (not generally applicable)

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 d)Note: The fact that the regulation affects the states has virtually no practical significance, and the 10th amendment never comes into
play. If the regulation would be valid if applied to a private party, it is also valid as to the state.
3. STEP #3- OTHER CONSIDERATIONS/ISSUE SPOTTING
a) If Congress is commandeering the states: 10A prevents Congress from interfering in certain ways with a state’s law-making
process. Congress can regulate but may not "commandeer" the legislative processes of the states by directly compelling them to enact
and enforce a federal regulatory program but can encourage them by giving them incentives. N.Y. v. U.S. (conditional spending might
be a way to commandeer)
b) See if there is an accountability problem: When the federal government compels states to regulate, the accountability of both states
and federal officials is diminished. Congress cannot escape political heat for unpopular decisions by forcing state officials to make
those decisions.
c) See if Congress is compelling an executive branch to perform functions: Congress may not compel a state or local government’s
executive branch to perform functions, even ones that are ministerial (easy tasks, no discretion). Printz v. US
d) Substantive Immunity: States may not be regulated as to certain substantive functions they perform
(1) National League of Cities v. Usery (Congress amended FLSA to extend to state employees) Although Congress has plenary
power to regulate interstate commerce through the Commerce Clause, the Tenth Amendment reserves control of intrastate
functions to the states. Congress cannot use the commerce power to impinge on a state’s policy choices in governmental matters
(a) *OVERRULED IN 1985 BY GARCIA* → FLSA could be applied to state employers
(b) Substantive immunities states enjoy:
(i) 11th Amendment→ bars states from being subjected to most damages suits in federal court
(a) Except suits against state officials seeking injunctive relief
(b) Congress is prohibited from abrogating this immunity aside from bankruptcy
(ii) Equal Footing Doctrine→ prohibits Congress from imposing conditions on admission of new states that would
make them unequal with other stateS; The federal government cannot dictate terms of state governance
(a) Except obligation to guarantee each state a form of republican government
e) Procedural Immunity: The federal government may not employ certain procedures to regulate states
(1) Garcia v. San Antonio Metropolitan Transit Authority (Overturning Garcia, applying FLSA to state employees) Any substantive
restraint on the exercise of ICC MUST:
(a) Find its justification in the procedural nature of state autonomy; AND
(b) It must be tailored to compensate for possible failings in the national political process
(i) States enjoy whatever immunity from the commerce power the political process confers
(ii) Systems to protect state sovereignty are already built into the structure of the federal government itself. States play a
significant role in electing reps; elected reps then continue to represent the interests of their states while in office.
(c) View of procedural immunity:
(i) Congress can use the commerce power to regulate states in whatever manner is pleases so long as the reg is:
(a) A clear an unequivocal statement of congressional intent to regulate a state’s sovereign functions; AND
(b) Not the product of a political process that is dramatically defective
B. SOVEREIGN IMMUNITY
1. STEP 1- RULE: 11A- the judicial power of the US shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against any one of the states by citizens of another state, or by citizens or subjects of any foreign state." Textually, 11A clearly bars suits
against a state brought by citizens of a different state or by foreigners. 11A has been interpreted to apply also to bar a damage suit where
the plaintiff is a citizen of the defendant’s state. This is true even if the suit is based on a congressionally-granted federal right.
a) Purposes of the 11th Amendment: (1) Prevention of obligation of state treasury to pay out federal judgments; AND (2) avoid indignity
to the state of being subjected to judicial proceedings at the instance of private individuals.
2. STEP 2- IS THIS AN EXCEPTION TO THE 11TH AMENDMENT?
a) Can sue a state official for an injunction but not damages when violates federal law or P’s constitutional rights
b) Can sue a state official for money damages if paid out of official’s pocket
c) Federal government can sue a state
d) No SI for localities- Individuals can sue a city or county. Look to the source of funding to see if it is local. Must see if a judgment
against that entity will operate largely as a suit against the state treasury. Other relevant factors: extent of state control over the entity,
the type of functions the entity performs, and how the state has designated the entity.
e) State can consent to suit in federal court
f) Conditional spending- consent to waive SI for money.
3. STEP 3- Is Π a citizen of a different state or same state than the defendant state?
a) States have a constitutionally-guaranteed sovereign immunity from private damage suits brought against the state in their own courts.
4. STEP 4- IS THIS A SUIT BY THE STATES OR FEDERAL GOVERNMENT?
a) 11th Amend does NOT bar federal suits brought against one State by (1) another state, or (2) Feds.
5. STEP 5- HAS CONGRESS ABROGATED THE STATE’S SOVEREIGN IMMUNITY? ASK 2 QUESTIONS
a) Has Congress has unequivocally expressed its intent to abrogate the immunity? AND
(1) Congress must provided an "unmistakably clear" statement of its intent to abrogate
b) Has Congress has acted pursuant to a valid exercise of power?
(1) Congress is acting properly pursuant to a valid exercise of power if Congress employs its remedial powers under §5 of 14A.
Thus, Congress may ONLY abrogate the states’ 11A immunity via § 5 of 14A
(2) Congress can no longer abrogate state sovereign immunity via the Commerce Clause, but it can condition $ (spending power) on
the waiver of sovereign immunity, SD v. Dole.
6. STEP 6- ALWAYS MENTION WHERE THERE IS A RIGHT THERE IS A REMEDY
a) Cite Marbury v. Madison. Citizens are not powerless, have redress against state action for grievances bc Congress can abrogate (take
away) sovereign immunity through § 5 of 14A
III. LIMITS ON STATE POWER
A. DORMANT COMMERCE CLAUSE
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1. STEP #1- RULE: State and local laws are unconstitutional if they place an undue burden on interstate commerce; Art 1,§8 Commerce
Clause impliedly limits states’ authority to interfere with interstate commerce because it grants authority for Congress to pass laws
regulating interstate commerce.
a) The inquiry: Not an affirmative power→ the dormant commerce clause doesn’t exist
(1) Strict Scrutiny Test: Compelling government interest, narrowly tailored means to the end
(a) Is there a less problematic means that would allow you to achieve the same goal?
(b) Least deferential test
(2) Horizontal federalism. Inferred limit on state ability to discriminate/burden interstate commerce. Federal constitutional
common law→ Marshall in Gibbons v. Ogden dicta, states not excluded from regulating activity within interstate commerce
b) Analysis
(1) Remember: ALWAYS a state statute, not a federal statute, in question
(2) Violations of the DCC occur when state regulation of wholly INTRAstate activity so affects interstate commerce that it inhibits
free, unburdened trade in the one national commercial organism
(3) SCOTUS review is much more aggressive, searching. Go behind legislative records to see if public safety, etc. are actually
implicated
c) The purpose: To prevent State infringement on ISC
2. STEP #2- DOES THE ACT REGULATE COMMERCE?
a) Same as INSC inquiry, just applied to a state statute
3. STEP #3- IS THERE DIFFERENTIAL TREATMENT RE: OOS GOODS/SERVICES? = FACIALLY DISCRIMINATORY
a) ISSUE SPOTTING:
(1) Are there geographic requirements? If the law is geographically discriminatory, then there is a presumption of invalidity, Phil v.
NJ (e.g.. restricted to GA only, or 75% restricted to GA)
(a) Carbone stands for the proposition that geographical discrimination is essentially discriminating about state lines.
(2) Are there in-state costs/benefits v. out-of-state costs/benefits? (ex. hoarding a local resource). If so, that is discriminatory.
(3) Are out of state residents facially discriminated against/subject to different treatment? If so, this would be interstate
discrimination even if discriminating against all out of state parties or even if in state parties affected also, Carbone
(4) Discuss Underlying Theories and see if they apply:
(a) Political: when a state impedes ISC, it is dividing our unity and creating political divisions. See if this could lead to
balkanization (states against each other) because you don’t want to separate the state from the rest of the union.
(b) Economic: Court needs to step in and police the political process to keep states from imposing costs on other states. See if
this could lead to costs out of staters.
(c) Free trade: When states regulate, they interfere with the free market and everyone loses. See if this would interfere with
regulation of free trade.
b) Discriminatory if the burdens out-of-state outweigh benefits in-state
(1) LOOK FOR: Tariffs, taxes, residency requirements, generally different treatment for INS & OOS
(2) Extra-Territoriality Principle: State cannot regulate out-of-state actor behavior, including those with practical effects of changing
behavior (taxing = changing behavior, but only the federal government can do that, states don’t have the power to tax OOS actors
to incentivize changing their behavior)
c) IF YES: Regulation is presumed INVALID. State has burden to show: (a) there is no less discriminatory option of achieving same
goal AND (b) chosen regulation furthers compelling state interest
(1) Compelling state interests: Facially discriminatory State actions are Constitutional ONLY IF they affect the health, safety, or
general welfare (e.g. quarantine laws)
(a) If the State action affects ISC, but does not protect health/welfare, then this action does get an exception Maine v. Taylor
(2) Strict Scrutiny Test from Dean Milk v. Madison: valid only when the regulation advances compelling local purposes that could
not be achieved by less discriminatory means. Are the means narrowly-enough tailored to the state interest?
(a) West Lynn Creamery v. Healy: states can subsidize local commercial actors, but money has to come from general tax funds,
not discriminatory tax or tariff like the one enacted here
(b) Philadelphia v. New Jersey: NJ law prohibiting states from shipping waste across border into NJ landfill INVALID,
discriminatory against “goods” on basis of origin
(c) Maine v. Taylor: Maine regulation prohibiting import of live baitfish VALID, protects native state minnow population, no
less discriminatory means available. Burden NOT excessive in relation to local benefit
d) IF NO: Only incidental effects on interstate commerce, regulation presumed VALID. Challenger bears burden of showing: Burden on
interstate commerce (“clearly excessive”) outweighs the benefits to the state under Pike Balancing Test OR There are less
discriminatory means available
(1) Balance the Local Benefits v. Burdens on ISC, Philadelphia v. New Jersey
(a) Less deference will be given to the state legislature where the local regulation has a disproportionate effect on out of state
residents and businesses or when there is a discriminatory intent/effect.
(b) Protectionist legislation is unconstitutional under the DCC, even if its purpose is to promote safety rather than economic
purposes.
(i) Kassel v. Consolidated Freightways (the Iowa truck case). State’s purpose for regulating is to protect the safety of its
citizens (facially neutral). Thus, applied balancing test. This is a burden on ISC bc these trucks would have to go on
backroads and would cost companies a lot of money to get new trucks and no real safety benefits so benefit does not
outweigh the burden.
(2) Southern Pacific Co v. Arizona: AZ regulation targeting train length to make railroads safer places an undue burden on plaintiff
(company) = undue burden on interstate commerce. The court must balance relative benefits and burdens
(3) National Pork Producers: CA moral obligations to selling parts from caged pigs (MENTION!!! LAURA LOVES THIS CASE)
(4) Pike v. Bruce Church: Regulation that required AZ melon boxes to have AZ label invalid. PIKE BALANCING CAME FROM
(5) Hunt v. Washington State Apple Adv Commission: labeling boxes with a WA grade apple label, similar to Pike. Invalid, burden
on interstate commerce
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 (6) Exxon Corp. v. Governor of Maryland: State may create hardship for some interstate corporations/companies operating in state as
long as it does not discriminate against them, because doing so would = burden on interstate commerce
4. STEP #4- EXCEPTIONS?
a) Quarantine Cases: Police power of health/safety to prevent import of items that are themselves dangerous to health (i.e. health threats,
pathogens, toxic waste, infected firewood or meat)
b) Market Participant: State may not impose restrictions on industry outside of a particular market.
(1) South Dakota v. Wayfair→ States may tax commercial shipment of goods to in-state consumer even if seller does not have
physical presence in taxing state
(2) If the State is a market participant, then it applies—action is not presumptively invalid. As a market participant, the State, like
any private industry, is permitted to show favoritism to in-state citizens.
(a) State university common example of State as market participant
(b) State can choose to whom they want to sell a product they manufacture
(c) State can choose who works on its product.
(3) EXCEPTION: Does not apply to natural resources. (South Central Timber- natural resource)
(a) Can only hoard if the state is investing capital and labor in manufacturing a product. Can’t affect related markets: state can
affect the market it participates in only. Example: South Central Timber; State is a market participant in the sale of timber
but not the processing of it and all export of timber was banned.
(i) Definition of market needs to be narrowly defined only to the initial act of selling, not all steps to follow
c) Public Function: When the state acts as a market participant, it can prefer itself even if it burdens out-of-state actors in the same
market. As a market participant and not merely sovereign regulator, state CREATES commerce
(1) EXCEPTION: State cannot regulate commerce downstream
(a) South Central Timber v. Alaska: in-state timber processing req invalid when vendor sold only unprocessed timber
B. FULL FAITH AND CREDIT CLAUSE
1. RULE: Art. IV, § 1, States must give full faith and credit to public acts, records, judicial proceedings of other states
a) Another limit imposed by horizontal federalism; Examples: requiring states to give FF&CC obligations to custody judgments in other
states, Defense of Marriage Act, Violence Against Women Act
b) Purpose: Judicial efficiency, not wasting resources. Plays into res judicata, don’t want to adjudicate the same claims twice in different
forums
c) TWO Parts:
(1) Must give full faith and credit to acts, judicial decisions of other states. That is, respect public acts, etc., of other states
(2) “Superpower” – Effects Clause - may prescribe the manner in which acts shall be approved
2. V.L. v. E.L: AL courts were bound to judgment of GA probate courts in custody-rights cases since GA courts had PJ, SMJ.
a) Judgment that appears on its face to be from competent court established rebuttable presumption of jurisdiction
b) How FF&C functions
(1) Choice of law/conflict of law: just because parties litigate in State A does not mean State A’s laws will apply.
(2) Laws of sister State B will apply if:
(a) Claims should arise out of contacts in B; OR
(b) Choice of law provisions choose B
(3) Law of the sister State can apply if:
(a) Forum state has interest in applying B’s laws;
(b) No policy of hostility toward sister State
(c) Example: Hyatt – defamation, invasion of privacy controversy in CA, but PL sues in NV. SCOTUS applies NV law
C. PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV
1. RULE: Art. IV, § 2, Cl. 1 The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
a) Do NOT confuse with 14th Amendment’s Privileges and Immunities Clause; Language identical, but 14th Amendment version
prohibits STATES from making, enforcing laws that abridge privileges + immunities; Article IV is much more narrow. May not treat
citizens and non-citizens of a state differently. Similar to DCC in that it protects states from discriminating against each other
b) May discriminate if the law furthers important state interest and the means are substantially related to that interest: Intermediate
Scrutiny
(1) TEST: Does the state regulation significantly burden OOS citizens? Did the state have a legitimate or protectionist purpose? Does
the state have substantial reason to discriminate?
(2) Examples where discrimination was upheld:
(a) Not allowing OOS to vote in your election;
(b) Public funding
(3) Examples where discrimination was invalidated:
(a) Regulating downstream economic effects
(b) South Carolina charging OOS fishing boats 10x in-state ones
c) Fundamental Rights (states cannot abridge) include:
(1) Travel among, pass through states w/o visa or immigration stops;
(2) Reside in state for business or other purpose, do business wherever
(3) Own and dispose of property wherever
(4) State cannot impose higher tax on OOS citizens
(5) Seek non-state-funded medical services anywhere: Right made available in Doe v. Bolton, may be reversed post-Dobbs
D. PREEMPTION
1. RULE: If a state and the federal government pass legislation on the same subject matter, the federal law is supreme, and the state law is
void; Article VI, § 2, Cl. 2 Supremacy Cl
a) For a state law to be preempted, there must be a conflict between the state law and the federal law
b) The Supreme Court cannot resolve conflicts of authority about the wisdom or need of either of the conflicting policies at issues
2. APPLICATION
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 a) All about Congressional INTENT – did Congress intend valid exercise of legislative power to preclude state activity on same
enterprises or relationships?
b) Generally presume Congress has NOT preempted/foreclosed state regulation
(1) Congress MUST intend to trigger Supremacy Clause
(2) Cannot get around the commandeering problem by claiming preemption→ Two completely separate concepts
(3) Tort and criminal laws in states may raise preemption issues
(a) Williamson v. Mazda: (Seat belt case) Federal regulation does not preempt state tort law if the state law would not frustrate
the purpose of federal law. If state tort conflicts significantly with regulatory objectives, it is preempted.
c) Express Preemption: Congress clearly, unequivocally states its intent to invoke the Supremacy Clause and preempt; occurs when a
federal law expressly provides that the states may not adopt laws concerning the subject matter of the federal legislation
(1) Narrow: express preemption clauses are narrowly [“we intend to preempt X”] and savings clauses [“BUT we don’t preempt Y”]
(a) Gade v. National Solid Wastes: state law cannot directly regulate something federal government already regulates
d) Implied Preemption
(1) Field Preemption: “blanket” Federal regulation is so pervasive, it makes inference reasonable that Congress left no room for
states to supplement; Congress has impliedly taken over the entire field with a comprehensive law (immigration)
(2) Conflict Preemption→ “swiss cheese”
(a) Impossibility→ Compliance w/ both federal and state regulations is impossible, but intent to preempt isn’t expressly
stated
(b) Obstacle→ State law stands as an obstacle to full accomplishment/execution of federal law

SEPARATION OF POWERS
UMBRELLA: The doctrine of separation of powers is a foundational principle to the founding of the United States. The purpose of the doctrine serves to
encourage interdependence and checks and balances of three branches. The Framer’s core concern when founding the nation was based on their own
experience that tyranny follows if one concentrates all power in one person, branch, etc.
REMEMBER: WHAT MAKES A TASK JUDICIAL, EXECUTIVE, OR LEGISLATIVE?
- Judicial: Art. III; Marbury v. Madison, say what the law is, offer a remedy. Identify legally-protected rights, violations, remedies
- Executive: Art. II; Receive policy decisions, frameworks from legislature, implement them and make sure they are followed under Take Care
Clause; prioritize who is tried in criminal proceedings
- Legislative: Art. I; Create policy and law, decide methods of execution. Youngstown: if it walks like a duck, talks like a duck. If it looks leg, it is
- Mistretta Definition: use political authority to bind, regulate primary conduct of public
- Chadha Definition: regulate obligations, duties, relationships of those outside legislature
ISSUE SPOTTING: How SOP issues arise:
1. Aggrandizing in relation to another branch
2. Encroachment on other branches power (Ex: Congress giving 5. Formal procedures like Bicameralism & Presentment
executive too much power over judiciary (indirectly i. Line-item veto & Legislative veto (Clinton
aggrandizing executive while encroaching on judiciary)) & Chadha)
3. Violations of vesting clause (executive power is entirely vested 6. Federalism
in president, leg in congress, jud in scotus) a. Notion of state power existing outside enumerated
a. Confusing tasks (Mistretta=sentencing guidelines are powers of federal government
a narrow exception to rule that courts should not be b. Individual rights/autonomy
involved in legislative activities) i. State action
4. Concentration of authority in one branch c. Intersections
a. Political accountability/Transparency: Particularly i. Dormant commerce clause
with appointments and removal cases ii. Preemption
iii. Anti Commandeering
I. EXECUTIVE AUTHORITY
A. ACTION
1. STEP #1- RULE: Art 2 Vesting Clause “Executive power shall be vested in pres”; Take Care Clause: “He shall take care that the laws be
faithfully executed”; Commander in Chief Clause “shall be Commander in Chief of the Army and Navy of the US (but Congress has a role
in regulating armed forces); Reception Clause : President shall receive ambassadors and other public ministers.
a) Purpose: Promotion of efficiency and accountability (through a strong executive), prevention of tyranny by separating the creation of
law from the enforcement of law and by making sure one branch doesn’t get too strong and have too much power. The President has
no right to make laws, he may only carry them out. Pres’ power to issue an order must stem either from an act of Congress or from the
Const itself (Youngstown).
b) Jackson’s zones of presidential authority- Presidential powers fluctuate in 3 categories, although this is not spelled out in the
Constitution. (Youngstown concurrence)
(1) Pursuant to an express or implied authorization of Congress: Pres authority is at its maximum, for it includes all that he possesses
in his own right plus all that Congress can delegate.
(2) In absence of either a congressional grant or denial of authority: Pres can only rely upon his own independent powers, but there is
a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.
(3) Takes measures incompatible with the express or implied will of Congress: Pres power is at its lowest ebb, for then he can rely
only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
2. STEP #2- DOES CONSTITUTION OR CONGRESS EXPRESSLY GRANT EXEC THE POWER?
a) IF YES: President can act b/c his power is at a maximum.
b) IF NO: Justice Black’s formalist approach would say that the Pres action is unconstitutional if not expressly enumerated in
Constitution or contained in Congressional legislation.
3. STEP #3- JACKSON’S CONCURRENCE ‘ZONES’
a) Pursuant to an express or implied authorization of Congress:

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 (1) MAXIMUM POWER
(2) The president has full power of the federal government to make law
(3) The question is simply whether the Constitution prevents the president and Congress from acting in concert
b) In absence of either a congressional grant or denial of authority:
(1) Where Congress remains silent, look to:
(a) Statutory language in related legislation (broad or narrow in scope);
(b) Subsequent congressional acquiescence;
(c) History, is this an area where the President has traditionally had broad power?
(2) Silence could mean implicit approval if in furtherance of Congressional silence, (Dames and Moore) OR expresio unius- if they
specified other stuff and didn’t include this, it could mean implicit disapproval
(3) The president may be able to make a law based on history and tradition
(4) The specific facts of an individual case will be important
c) Takes measures incompatible with the express or implied will of Congress
(1) Presidential power is at its lowest and the court should strictly scrutinize Presidential action. President is disobeying a federal law
and such actions are only permissible if the law enacted by Congress is unconstitutional. If in this category, act needs to
withstand heavy scrutiny or else it will be held unconstitutional
(2) Youngstown Sheet & Tube Co. v. Sawyer: (Steel seizure) The President of the United States may not engage in lawmaking absent
an express authorization from Congress or the text of the Constitution.
(3) The president may only rely on his own constitutional power to make laws
(4) The president can only prevail if the executive power on that subject is indefeasible
4. STEP #4- FOREIGN AFFAIRS?
a) In foreign affairs, Pres enjoys a large amount of discretion (Curtiss Wright) As opposed to domestic affairs, foreign affairs concerns
are more sympathetic and deferential to the President since the pres needs to speak with a unified voice to avoid embarrassment and
the President is more knowledgeable in this area. In a matter of foreign affairs, Pres can take actions not authorized by Congress or
enforce laws Congress has not passed
(1) Trump v. Hawaii: (Muslim ban upheld in face of 1st Amendment Establishment Clause)
(a) Court uses rational basis scrutiny: “entry policy plausibly related to the government’s stated objective to protect country”
(b) Presidential power to recognize other countries; Power is exclusive, because the nation must speak with one voice. Congress
may not contradict via statute
(2) Zivotofsky v. Kerry: (Act allowing citizens born in Jerusalem to designate place of birth on certificate as Israel)
(a) INVALID since it forces the President to contradict statement of recognition, neutrality in two-state controversy
(b) Court took a very robust view of president’s foreign affairs power
b) Formal Treaty Power (Article II, Section 2): President w/ advice + consent of Senate. BINDING as matter of international law
(1) Presidential ability to negotiate with or without post-hoc approval by Senate to bind
(2) Executive agreements and treaties are non-binding agreements→ i.e. next president/congress not bound
(3) Power stems from: (1) Enumeration in Constitution; (2) Statute by Congress; OR (3) Prior treaty authorization
(a) US v. Curtiss-Wright Export Corporation: (Congress passed a resolution authorizing Pres to stop the sale of arms to
countries involved in the Chaco border dispute. Roosevelt issued EO in compliance Δ illegally sold arms to Bolivia, a
country engaged in the Chaco border dispute. The transaction was in violation of the congressional resolution and the
President’s executive order.)
(i) An otherwise unconstitutional delegation of legislative power to the president may be sustained if the exclusive goal
is to provide relief during foreign conflict
(b) Negotiating Partners worldwide understand limits on President (term limits, bureaucracy, domestic administrative state, civil
agents); Also understand that executive agreements without Congressional support are non-binding
B. LIMITS
1. From Youngstown: Congress can step in when it wants, and it has
2. United States v. Curtiss-Wright sets the OUTER LIMITS: Foreign affairs power rests in the executive. Authority is plenary. The president
is the sole organ of the federal government in international relations. The president must act within the bounds of his powers as enumerated
in the Constitution, but Congress must afford him a broad discretion in foreign affairs that he may not enjoy in domestic affairs
C. IMMUNITIES
1. STEP #1- RULE: The so-called executive privilege is a President’s qualified right to withhold confidential info from the other branches of
government relating to the performance of their duties. It is qualified, because it is subject to judicial review. It is the province of the Court,
not of the President, to decide the scope of the privilege, Marbury. Special protections for communications only: Designed to protect the
president and advisors; encourage candid communication
a) Absolute immunity from civil liability for official actions: Nixon v. Fitzgerald: President has absolute immunity from paying civil
damages for official acts as president
b) NOT immune from judicial process for criminal proceedings OR civil proceedings in fed/state courts (subpoenas, depositions, and
other orders of court that require him to participate in discover/fact-finding)
(1) US v. Nixon: The need for info in a criminal prosecution outweighs the Presidential desire to keep that information private by
invoking executive privilege; Generalized interest in confidentiality is not sufficient to overcome the judicial need for evidence
(2) Trump v. Mazars: (Congr subpoenaed Trump re: info about business, family) Congress may subpoena the president, and he must
cooperate, if discovery materials are needed for a legitimate legislative purpose
(a) Discovery request/subpoena must be:
(i) Tailored to legislative need;
(ii) Seek reasonably necessary information;
(iii) The only means of obtaining the information
(a) Prevents branches from torturing each other with the subpoena power
(b) To decide what evidence to subpoena, consider factors:
(i) Courts try to avoid confrontation between branches;

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 (ii) Narrow subpoena sufficiently to provide information;
(iii) Congress can give a specific explanation for how each piece of evidence will be used;
(iv) Burden on president in producing documents
(3) Trump v. Vance: (Req accounting/tax records of Trump) Grand jury may subpoena president without a heightened showing of
need
2. STEP #2- EXCEPTIONS
a) Qualified Immunity→ A doctrine that shields officials from lawsuits related to actions taken while in office that do not violate
clearly established statutory or constitutional rights; claims against federally-protected agents
(1) Not personally liable for consequences of official activity UNLESS it violated:
(a) Clearly established constitutional right of an individual;
(b) Which a reasonable person would be aware he has violated
D. PRIVILEGES
1. PARDON
a) Extremely broad: the president can pardon a single person or a category of people. Attaches any time AFTER offense committed.
Offenses must be FEDERAL, civil or criminal. Alternative to commuting (lessening sentence)
(1) Not subject to congressional interference, but NOT exclusive. Congress can provide general amnesty. Others officials can set
aside forfeitures; Can be pursuant to conditions. Will NOT grant reparations or remedy ancillary consequences of conviction (ex:
forfeiting property, wages during prison sentence)
b) LIMITS: President cannot pardon himself or pardon state offenses
2. IMPOUNDMENT
a) Executive can sequence spending that Congress has allowed in appropriate bill
(1) Nixon tried to exercise massive power by refusing to spend any money Congress allocated, but this view REJECTED
(2) President cannot refuse to use spending, but may, sometimes, delay spending
3. APPOINTMENTS & REMOVALS
a) Necessary intercession between federal power and substantive effects in practice. Consider who should be chosen, who will supervise,
who uses what power, and what departments should be involved.
(1) Seila Law v. Consumer Financial Protection Bureau: Pres needs to select officers that will aid him, must be removable at will
(2) Two textual sources: Art I, Sec 8 N&P and Art II, Sec 2, cl 2 Appt Power two broad categories of officers
(a) Is the person taking action in violation of the appointment clause, or are they using authority consistent with the way they
were appointed?
(i) Seila Law: We care if appointed officials are following presidential prerogatives. Presidential unitary policy to
exercise executive power to remove officials, ensure prerogatives are met
(3) Principal or inferior officer status? Subject to multi-factor review. Defined in Morrison v. Olsen
(a) In Morrison, law vesting judicial authority to appoint an inferior officer and prohibiting removal without cause did NOT
violate separation of powers
(i) Principal Officer: Appointment by president without advice and consent of the senate. Must be removable at will by
the president, power to remove is a core executive power; Usually cabinet-level
(a) EXCEPTIONS to removal power
(i) Restrained Morrison, inferior officer with limited powers that are not agency heads. Scope of
responsibilities targets only high-level officials.
(ii) Multi member body of experts, classic independent agency run by board (not single director) or
bipartisan groups that have mechanisms to make it independent of parties to litigation.
(iii) Seila Law: Congress establishes CFPB to protect consumers. Board with a single director can make
rules pursuant to 20 enumerated statutes. Appointed by the president with advice + consent of the senate.
Removable for cause “inefficiency, neglect, malfeasance”
(iv) For a president to use power, he must have control and be the unitary executive. Power to remove is core
executive power (only for principal officer)
(v) If there’s someone between president and officer he’s trying to remove in the chain of power = president
can only remove at will
(vi) “For cause” removal limits the “at will” power of president, but not to an unconstitutional level that
impedes the president's ability to perform his constitutional duty or ensure laws are faithfully executed
(ii) Inferior Officer: Art II, Sec 2; Congress may provide for how inferior officers are appointed. Either by president,
heads of departments, or courts.
(a) But Congress cannot appoint inferior officers, one of the few bright line rules in this section
(b) Has a supervisor (usually a principal officer) who can overturn their decisions. Just having someone ahead of
you in hierarchy is not enough; Usually subject to removal by the person who appointed them. IMMEDIATE
REMOVAL POWER.
(i) President can still recommend removal
(ii) Selia Law: Inferior officers with a limited portfolio of responsibilities and NOT AGENCY HEADS
currently have some protections from at-will removal.
(iii) Unspecified Category 3: Everyone else, just plain government employees
II. LEGISLATIVE AUTHORITY
A. STEP 1-RULE: Separation of powers not expressed in the constitution but inherent notion of strong, independent branches of government, but
also a notion that they should not be too independent because the branches should exercise checks and balances on each other. The president
executes the law, congress makes the laws, and the judiciary interprets the law. The purpose of separation of powers is to promote efficiency
and accountability and prevent tyranny from other branches getting too strong and having too much power. Art. I lays out leg powers
B. STEP 2: WAS CONGRESS’S ACTION LEGISLATIVE OR EXECUTIVE?
1. ISSUE SPOTTING:
a) The act seems legislative given the presumption of legislation when Congress is acting.
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 b) Will the exercise of authority affect the legal rights of individuals? (e.g. deporting Chadha = leg)
c) An alternative means for achieving the result exists (e.g. a private bill)
d) The act has overruled the decision of a member of the Executive (e.g. Attorney General in Chadha)
e) Congress is acting through an agent.
2. IF LEGISLATIVE→ Step 3
C. STEP 3: WHEN CONGRESS ACTED, WAS THERE BICAMERALISM AND PRESENTMENT?
1. When Congress acts, must meet 2 requirements to avoid (1) violating SOP, & (2) tyranny Chadha.
a) Bicameralism: Passage of bill by both houses
b) Presentment: Bill must be presented to the president for it to be signed or vetoed
2. If no B&P, Congress is violating SOP and infringing on Executive power.
a) Exception where the Constitution expressly provides that B&P is unnecessary:
(1) Impeachment; Executive Appointments; Treaties
3. INS v. Chadha stands for the proposition that a Congressional reservation of a one-house veto is unconstitutional b/c Congressional action
requires bicameralism & presentment.
a) Functionalism argument: the one-house veto had the same effect as the old system—one house voting no (vetoing) is the same as both
houses voting no, or one voting no and the other yes.
4. ASK: Is this promoting accountability? (purpose of bicameralism and presentment, someone has to be held directly accountable, i.e. by
vote)
D. STEP 4: IS IT A LEGISLATIVE FUNCTION BEING DELEGATED BY CONGRESS?
1. Congress can delegate power as long as it is not delegating it to itself. No congressional self-aggrandizement allowed. Congress cannot try
to take away executive authority to make itself stronger.
2. Argue both formalist approach and functionalist approach.
a) Formalism (Burger): Branches must strictly adhere to the powers granted so if it’s a legislative function being delegated by Congress
which will not be subject to bicameralism and presentment, the delegation is unconstitutional according to Art 1, § 7. (Chadha:
legislative veto is unconstitutional because it violates the 2 requirements for legislation.)
b) Functionalism (White): This approach gives fidelity to the purposes of the separation of powers and it only finds a violation if one
branch aggrandizes its power at the expense of another or if there is a radical redistribution of power. If not, then delegation is OK.
(Morrison: No aggrandizement because the original legislation delegating the power was approved through bicameralism and
presentment, and Congress retained a check on the legislation through a one-house veto).
E. STEP 5: IS CONGRESS APPOINTING OR REMOVING AN OFFICER?
1. Appointing- Appointment Clause (Art 3,§ 2) gives the Pres, not Congress, the power to appoint principal federal officers.
a) Principal officers: Must be appointed by pres with the advice and consent of the Senate. (Members of Cabinet, ambassadors, fed
judges)
b) Inferior officers: Congress can appoint them. (Example: special prosecutor (may be removed only for cause))
(1) To see if it is an inferior officer, see if its duties are limited in purpose and time- must be for it to be an inferior officer. The
Executive branch will be denied power to appoint and remove inferior officers even when the appointment is related to purely
executive power- this is because the AG has the power to remove, not the president. (Morrison)
(a) Note: Morrison accepted some inter-branch appointments, but not appointments by Congress.
2. Removing-Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws, except by
impeachment. The exec branch may be deprived of the power to remove an inferior officer if the appointment was related to purely
executive power.
a) Ask if Congress retains the right to remove an executive officer? If yes, this converts that officer into an agent of Congress, and
legislative officers cannot perform executive functions

STATE ACTION
UMBRELLA: The Constitution applies only to government action. It does not apply to government inaction. It generally does not apply to actions/inactions of
private individuals or companies. Congress may, by statute, require private individuals to conform to constitutional standards. Some instances when private
individuals and companies will be considered state actors subject to the 14th Amendment:
1. When the private person/company is performing a traditional, exclusive government function
2. When the government affirmatively authorizes, encourages, or facilitates an unconstitutional activity (i.e. the government leases space to a business
that discriminates, court enforcement or a racially restrictive covenant in a deed/lease, peremptory challenges)
A private actor/company will NOT be considered a state actor solely because of any of the following:
1. Government provides all or most of its funding 4. Association has government members
2. Government has licensed the company 5. Government regulates the company
3. Government has approved the company’s name/charter 6. Company is working under a government contract

I. GENERALLY/BACKGROUND
A. General Inquiry: State officials are obviously answerable for violations of federal constitutional rights, but when is a non-government official
liable?
1. If violation is by a government official in their capacity as a government official, clearly constitutional harm, and each acts on behalf of the
state = unconstitutional state action
2. 14th + 15thA do NOT apply to private action. If a private actor acts AS private actor/citizen, constitutional harms are “constitutional.”
Classmates can violate each others’ rights all day without course of remedy
a) ONLY if a private actor acting as state/government official = unconstitutional state action
B. Bill of Rights only applied to the federal government, not states. Gradual changes after Reconstruction Amendments (13, 14, 15).
1. Protections case-by-case incorporated against the states. Not all apply to states:
a) Fully Incorporated: 1st freedoms; 2nd arms; 4th search & seizure; 8th cruel & unusual punishment
b) Not Incorporated: 3rd quartering; 7th jury trial for civil cases
c) Partially Incorporated: 5th (NOT indictment by grand jury), 6th (NOT jury of residents where crime took place)
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II. PRIVATE ACTOR BECOMING STATE ACTOR
A. BASIC FRAMEWORK:
1. Manhattan v. Halleck: Laid out framework for how private actors become state actors; Π (producers) sued Δ (Public Access Channel) for
discrimination against content of speech. Basic 1st Amendment claim that public actor cannot limit speech content (Exceptions: fire in
movie theater, government secrets, pornography)
a) The regulation of private activity by a state actor, does not turn the private actor into a state actor for purposes of constitutional
enforcement unless the private actor is providing a function that is a traditional and exclusive public function
(1) The public-function exception to the state-action doctrine considers a private entity a governmental actor only if it is performing
a traditionally and exclusively public function. The Free Speech Clause prohibits only governmental, not private, restrictions of
speech. The state-action doctrine protects robust individual freedoms by defining the constitutional boundary between the two.
B. ENTANGLEMENT/ENTWINEMENT: Private actor is so entangled with a state actor that he essentially becomes state actor
1. Mere regulation of private activity by private actors does not turn regulation into state action, UNLESS private actor exercises a traditional
and exclusive public function
a) Burton v. Wilmington: Evil coffee shop. State parking authority leases public property to coffee shop. Private lessees of
public/government property are state actors, cannot violate 14th Amendment.
b) Heart of Atlanta Motel: Congress has power under ICC to prohibit racial discrimination of private actors. Eludes state-actor
limitations of 14th Amendment
c) Brentwood Academy v. TSSAA: Assess list of circumstantial (case-specific) factors to determine whether a private entity can be
considered a public actor
C. PUBLIC FUNCTION DOCTRINE: Private entity performing public function takes on responsibilities of the public, becomes a state actor.
Not enough that a private actor undertakes public activity. Must be activity traditionally and exclusively associated with actual official/state
actors
1. State actually contracts out core functions of state to private actors (most obviously, schools)
2. Private actor without a special relationship to state carries out public function
a) Marsh v. Alabama: Company town of Chickasaw must allow Marsh to hand out Jehovah’s pamphlets. Constitutional provisions still
apply to a town open to public and used for public purposes. Logic that Chickasaw is a company town applied to malls, other public
centers soon thereafter. Comparison no longer sound
3. Activities that are NOT TRADITIONAL OR EXCLUSIVE:
a) Flagg Brothers warehouses. Amateur sports. Nursing homes. Special ed facilities. Public defenders.
D. COERCION/ENCOURAGEMENT: By the government to the point of coercion
1. Shelley v. Kraemer: District court upholding the validity of a discriminatory restrictive covenant qualifies as encouragement

INDIVIDUAL RIGHTS
I. TAKINGS
A. RULE: 5th Amendment Takings Clause → Federal government cannot take private property for public use without just compensation
1. Foundational Property Rights: use, exclude, destroy, transfer
2. Recall 14th Amendment prevents STATE taking life, liberty, or property without due process of law
3. Two questions to ask:
a) Is there a taking?
b) Is compensation just?
4. Public USE: taking must be rationally related to a conceivable public purpose. Kelo v. City of New London
B. TWO TYPES OF TAKINGS
1. “Easy case” of physical confiscation
2. “Harder case” of regulatory takings: regulation coercive such that it “takes” property
a) PER SE Takings→ Automatically require just compensation, no need to weigh benefits and burdens
(1) Permanent Physical Invasions: Loretto v. Teleprompter Manhattan CATV Corp.: Cable boxes in apartment buildings constitute
taking; NO NEED to consider public interests that permanent physical invasion may serve, or the fact that economic impact on
property owner was minimal
(a) Permanent does NOT mean forever/until the end of time
(2) Temporary Physical Invasions: Cedar Point Nursery v. Hassid: CA Agr Labor Relations Act invalid as a taking. Labor
organization employee’s ability to enter employer land to negotiate was an impermissible taking that eliminated employers’
property right to exclude
(3) Economic Viability: Lucas v. South Carolina Coastal Council: Regulations that completely deprive the owner of all
economically beneficial use of private property require just compensation UNLESS economic activity prevented by the
regulation is NOT part of the property owner’s initial title or property rights
b) All other regulations: Penn Central Transportation v. New York
(1) The Landmarks Preservation Act designates Grand Central Terminal as a landmark. Penn Central Transport + lessee (UGP) can
no longer build a 50-story skyscraper in the airspace above it
(2) NOT a taking. Weigh THREE Factors to assess whether there is taking and whether it requires just compensation
(a) IS IT A TAKING TEST:
(i) Economic impact on claimant/landowner→ Total diminution of value?
(ii) Interference with reasonable investment-backed expectations
(iii) Character of government action→ Physical or regulatory?
3. EXCEPTIONS:
a) Nuisance: more intense than noxious use. Analogous to police power in early takings jurisprudence; NOT a taking
b) Miller v. Schoene: Act requiring landowners to remove cedar trees infected by rust that harms apple orchards was NOT a taking. State
does not violate Due Process by destroying one class of property to save another that is valuable to public
4. Takings apply to both real and personal property (Hassid, Horne)

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 a) Horne v. Dept Agriculture: Government mandate to relinquish personal property (raisin crops) as a condition to engage in commerce
is a per se taking requiring just compensation
5. Important to remember whether person invading property interest is a government actor (definitely a taking) or private actor (maybe)
II. SECOND AMENDMENT
A. JURISPRUDENCE: Cases regarding the 2nd Amendment are still fresh and subject to change
1. District of Columbia v. Heller: (Prohibition on handguns and operable long guns in the home case) The 2nd Amendment is an individual
right, not just for connection with militia. Predates the constitution. Because it is an individual right, an outright prohibition is
unconstitutional. You cannot prohibit the exercise of a 2nd Amendment right any more than you can prohibit exercise of free speech
2. New York State Rifle & Pistol Association v. Bruen: NY law required a permit to carry a handgun in public. Must show special need.
Bureaucracy controls the decision of granting permits for special needs. BUT a nurse who was walking home late at night and didn’t feel
comfortable would not satisfy the “special need” UNLESS threat made against her (oral argument) = What you feel uncomfortable with
isn’t enough. Core concern of 2A/Heller = individual right to own gun is self defense Three Steps:
a) Is individual right under 2A implicated by regulation? If yes = presumed invalid
b) Government’s burden to show historical analogs; no more means-end inquiry→ solely based on history
(1) When the Second Amendment's plain text covers an individual's conduct [here the right to bear arms], the Constitution
presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with
the Nation's historical tradition of firearm regulation (AT TIME OF FRAMING). Only then may a court conclude that the
individual's conduct falls outside the Second Amendment's "'unqualified command.'"
(2) 2nd Amendment extends to public as long as it’s peaceable
c) Wholeheartedly non-balancing test: History = source of right; Regulation was acceptable at time of framing. Type of gun not limited
by history; only REGULATIONS are limited by history
3. United States v. Rahimi: Rahimi = criminal past, not convictions though. None of these acts had anything to do with his loss of weapons
a) No disqualifiers removed Rahimi from the class of law-abiding citizens. Lost weapon due to state domestic violence protective order
b) The court applies post-Bruen test AND pre-Bruen-type balancing test
(1) Historical statutes taking guns away were about a general threat to the public overall, not targeted at threat towards individuals
(like DV case), so the law can’t stand.
(2) Judge Ho concurrence: "civil protective orders are too often misused as a tactical device in divorce proceedings – and issued
without any actual threat of danger."
(a) Balancing test (pre Bruen), arrest people committing domestic violence and put them through CJ system, not using the
shortcut of the civil protective order Alternative means to an end
B. MAJOR QUESTIONS REGARDING 2nd AMENDMENT RIGHTS
1. Who has 2A right to bear arms?
a) Bruen + Heller: ordinary, law-abiding, responsible citizens
b) Age restrictions? Jurx split: MN allows 18-20 yr olds to have permits; FL upheld prohibition for 18-20 yr olds post-Parkland
c) Who is a law-abiding citizen? Enter background checks
(1) National Instant Criminal Background Check System (NICS): 12 federal “red-flags”/disqualifiers (convicted felons, dishonorable
discharge, renounce citizenship {2A is right of CITIZENS}, addicted to controlled substance)
(2) States can add more disqualifiers (TN if you are addicted to alcohol)
2. Where can you exercise 2A rights?
a) Bruen = in public; Heller = in the home
b) CANNOT in “sensitive places” (jurx based definition) Usually: schools, government buildings.
3. What kind of weapons?
a) Type of gun not limited by history; only regulations are limited by history. Even still, history doesn’t limit weapons, generally
b) “Dangerous and unusual weapons” → Heller
(1) What does that mean? Usually used for unlawful purposes, not for self-defense; uncommon, unusual, usually used to terrorize,
unlawful
(2) How is a weapon “dangerous and usual” enough? → Consider under what class of gun the weapon falls into:
(a) Machine Guns: heavily regulated in the 30s since gang/organized crime rising. Regulated under taxation
(b) Gun Control Act of 1968 Regulated interstate commerce of firearms: Importing, prohibited ownership by some categories
of people
(i) Asserted federal regulatory power of destructive devices (puts restrictions, licensing provisions over bombs,
mines, grenades)
(c) Miller: sawed-off shotguns.
(d) ATF added bump stocks to definition of machine guns for “dangerous and unusual” “unlawful purposes” → 5th circuit
struck down as out of ATF’s authority and US has filed writ of cert for review (Garland v. Cargill)
(3) *If device does not fall within protected categories, don’t even start Bruen analysis

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