Little Known Works of Famous Authors

Constitutional Law I

Professor Denning’s Constitutional Law I

Fall 2004

Daniel Harrell


§1: Judicial Review


I.                   Introduction

Article III of the Constitution, which is the article setting forth the judiciary branch, never expressly grants the federal courts the power to review the constitutionality of federal or state laws or executive decisions. However, from the earliest days of the country, the Supreme Court has claimed the power to review the constitutionality of federal and state laws and executive actions. Seminal cases include Marbury v. Madison, and Martin v. Hunter’s Lessee. Because of these decisions, the power of judicial review is firmly established and is an integral part of American government, even though it is not authorized in the text of the Constitution.


A.     Layman’s Definition of Judicial Review

Judicial review is the power of courts (generally) to review the acts of legislatures and the acts of the executive. Simply, judicial review is the ability of the court in a case brought before it to rule on the validity of an action of the legislative, executive or judicial branch of government.


B.     Black’s Definition of Judicial Review

According to Black’s Law Dictionary, judicial review is “a court’s power to review the actions of other branches or levels of government; esp., the court’s power to invalidate legislative and executive actions as being unconstitutional.”


II.                Marbury v. Madison

This case is the single most important decision in American constitutional law. It established the authority for the judiciary to review the constitutionality of executive and legislative acts.


A.     Facts

Jefferson, a Democratic-Republican, defeated Adams in the presidential race. The Judiciary Act of 1801 allowed Adams to create circuit judges and justices of the peace. This was done and Democratic-Republicans thought it was an effort by the Federalists to create a stronghold in the judiciary. John Marshall, a Federalist, was named to be Chief Justice and the number of justices was reduced from six to five. William Marbury was nominated and confirmed to a justice of the peace position. The commission was never delivered to Marbury during Adams’ term. The Jefferson administration takes over and Madison is told not to deliver the commissions. In 1801, Marbury files suit, petitioning the court to issue a writ of mandamus. A writ of mandamus is an order to compel issued by a court to a government official requiring that official to perform his mandatory or purely ministerial duties correctly. Although Marbury’s petition was filed in December 1801, the Supreme Court did not hear the case until 1803 because Congress, by statute, abolished the June and December 1802 Terms of the Supreme Court.


B.     Holding

The Supreme Court ruled against Marbury and held that it could not constitutionally hear the case as a matter of original jurisdiction. The Court held that although the Judiciary Act of 1789 authorized such jurisdiction, this provision of the statute was unconstitutional because Congress cannot establish original jurisdiction beyond the situations enumerated in the Constitution.


1)      Comment on Marshall’s Analysis

Marshall dealt with the jurisdiction issue last as opposed to first in this case. Because the Court held that it lacked jurisdiction, all other parts of the opinion – such as considering whether the commission had vested and the ability of the judiciary to review the executive’s action – were arguably improper. There are two probable reasons why Marshall structured the opinion this way. First, the initial parts of the opinion may have been included to show that the Jefferson administration was improperly denying Marbury his commission, even though nothing more could be done. Second, the case was likely perceived as presenting a unique opportunity to claim the power of judicial review, but in a context least likely to draw opposition.


C.     Three Issues of the Opinion

Marshall set forth his analysis by posing three primary questions: (1) Does Marbury have a right to the commission? (2) Do the laws afford Marbury a remedy? And (3) Can the Supreme Court issue this remedy and is mandamus the appropriate remedy?


1)      Does Marbury have a Right to the Commission?

The Court concluded that Marbury had a right to the commission because all appropriate procedures were followed. The Jefferson administration contended that delivery was essential to the validity of a commission but the Court rejected this view stating that “when a commission has been signed by the President, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the Secretary of State.”


2)      Do the laws afford Marbury a remedy?

Since the essence of civil liberty of the right of every individual to claim the protection of the laws whenever he received an injury, the specific issue dealt with was whether the Court could give Marbury a remedy against the executive branch of government. The Court answered that no man – not even the president – is above the law. The Court drew a distinction, however, stating hat the judiciary could provide remedies against the executive when there is a special duty to a particular person, but not when it is a political matter left to executive discretion.


3)      Can the Court issue this remedy and is mandamus the appropriate remedy?

In answering the former question, the Court again focused on the distinction between ministerial acts, where the executive had a duty to perform, and political acts, within the discretion of the executive. Judicial review was deemed appropriate only over ministerial acts. Marbury then establishes the power of the judiciary to review the constitutionality of executive actions. Some matters – such as whether to veto a bill or who to appoint for an office – are entirely within the discretion of the President and cannot be reviewed. But where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus.



a)      Does the law authorize mandamus on original jurisdiction?

Having concluded that Marbury was entitled to the commission and the court had the authority to issue a remedy, the Court then turned to jurisdiction. The Court read Section 13 of the Judiciary Act of 1789 as granting it original jurisdiction over requests for mandamus.


b)      Does mandamus on original jurisdiction violate Article III?

Yes; the Court concluded that Article III enumerated its original jurisdiction and that Congress could not enlarge it. The Constitution provides that the Supreme Court has original jurisdiction over only suits “affecting ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.” The Court said that Congress could not add to this list cases seeking a writ of mandamus. Essentially, Marbury stated that Article III’s enumeration of original jurisdiction would be “mere surplusage . . . entirely without meaning” if Congress could add more areas of original jurisdiction.


c)      Can the Supreme Court declare laws unconstitutional?

Marshall offered several reasons why the Court could declare federal laws unconstitutional, which are essentially justifications for judicial review: (1) it is inherent to the judicial role to decide the constitutionality of the laws that it applies; (2) the Constitution imposes limits on government powers and these limits are meaningless unless subject to judicial enforcement; (3) the Court’s authority to decide cases arising under the Constitution implied the power to declare unconstitutional laws conflicting with its basic charter; (4) it would violate a judge’s oath of office to enforce an unconstitutional law; and (5) judicial review is appropriate because Article VI makes the Constitution “the supreme law of the land” – thereby making it superior to all other laws.


D.     Criticism of Marshall’s Justifications for Judicial Review

Some critics contend that the fact that the Constitution is the supreme law does not compel its conclusion that the Court is the final interpreter of the Constitution. Since the Constitution does not explicitly give the courts judicial review, the critics contend that each branch of the government is equally entitled to determine for itself the meaning of the Constitution. None of Marshall’s justifications entirely dispose of this objection, although taken together, they form a convincing argument.


E.     Arguments for the Utility of Judicial Review

Judicial review is often asserted to be desirable for the following reasons:


1)      Counter-majoritarian Role

Congress will manifest the will of the majority, which may (perhaps often) be intolerant of unpopular political minorities. But constitutional rights are intended to protect political minorities, so Congress cannot be thus trusted. Federal judges, appointed for life, are relatively immune from majoritarian pressure, so they are better equipped to decide whether legislation is constitutional.


2)      Stability

If each branch is free to determine the meaning of the Constitution, there will never be any settled meaning. Court decisions would bind particular litigants but would have no broader effect. The possibility of constitutional chaos is avoided by the acceptance of judicial review.

F.      Arguments Against Judicial Review

Judicial review is often asserted to be pernicious for the following reasons:


1)      Antidemocratic

Federal judges are unelected and are not politically accountable. To vest final authority over the meaning of the Constitution in such people is a repudiation of the principle of democratic self-governance. Courts could essentially become a judicial politburo.


2)      Entrenched Error

Judicial review means that it is very difficult to correct mistaken judicial interpretations of the Constitution. Avenues for correction include (1) persuading Court to change its mind (usually requires new Justices as a prerequisite), (2) impeachment, or (3) constitutional amendment. All of these options are difficult to implement, so judicial review means that when the court gets something wrong, it usually stays wrong for a long time.



III.             The Authority for Judicial Review of State and Local Actions

Marbury established the power of the Supreme Court to review the constitutionality pf federal executive actions and federal statutes. Another case, Martin v. Hunter’s Lessee, was key in establishing the Court’s authority to review state court decisions. Although the Constitution does not explicitly say that the Supreme Court mat review state court decisions, the Judiciary Act of 1789 provided for Supreme Court review of state court judgments.


A.     Martin v. Hunter’s Lessee (U.S. 1816)


1)      Facts

In this case, there were two conflicting claims to certain land within the state of Virginia. Martin claimed title to the land to the land based on inheritance from Lord Fairfax, a British citizen who owned the land. The U.S. and England had entered into two treaties protecting the rights of British citizens to own land in the U.S. However, Hunter claimed that Virginia had taken the land before the treaties came into effect, and hence, Martin did not have a valid claim to the property.


2)      Procedure

The VA Court of Appeals ruled in favor of Hunter. The U.S. Supreme Court issued a writ of error and reversed the VA decision, holding that the federal treaty was controlling and that it established Fairfax’s ownership. The VA Court of Appeals, however, declared that the Supreme Court lacked the authority to review state court decisions. This posed the ultimate question of this case: does the Supreme Court have authority to review state court decisions.


3)      Holding

Ultimately, in a decision written by Justice Story, the Court articulated its authority to review state court decisions. Story makes three compelling arguments for Supreme Court review of state court judgments.

a)      First, Story argues that the Constitution presumed that the Supreme Court could review state court decisions. Story argued that the Constitution creates a Supreme Court and gives Congress the discretion whether to create lower federal courts. But if Congress chose not to establish such tribunals, then the Supreme Court would be powerless to hear any cases, except for a few fitting within its original jurisdiction, unless it could review state court rulings. As such, since Article III grants the Court appellate jurisdiction over all cases arising under the Constitution that rant must include those that arise from the state courts.

b)      Second, Story emphasized the importance of Supreme Court review of state court decisions, arguing that the Constitution was based on a recognition that “state attachments, state prejudices, state jealousies, and state interests might sometimes obstruct, or control, or be supposes to obstruct or control, the regular administration of justice.” Moreover, state judges are obligated to apply federal law as superior to state law. Because state judges are bound by the U.S. Constitution, their constitutional interpretations ought to be bound by the Supreme Court.

c)      Finally, Story also observes that Supreme Court review is essential to ensure uniformity in the interpretation of federal law.


B.     Cooper v. Aaron

This case proved that not only does the Supreme Court have the ability to review state court decisions, but federal courts also have the authority to review the constitutionality of state laws and the actions of state officials.


1)      Facts

A federal district court ordered the desegregation of the Little Rock, Arkansas, public schools. The state disobeyed this order, in part, based on a professed concern that compliance would lead to violence, and, in part, based on a claim that it was not bound to comply with judicial desegregation decrees.


2)      Holding

The Court rejected the claim that the state was not bound to comply with judicial desegregation decrees. The Court reasoned that Article VI of the Constitution makes the Constitution ‘the supreme Law of the Land’ and that Marbury had declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution. Therefore, every state legislator and executive and judicial officer is solemnly committed by oath to support the Constitution.



§2: Doctrines Limiting the Scope of Judicial Review


I.                   Direct Political Controls: Amendment, Appointment, and Impeachment

The direct political controls of the Supreme Court are difficult and uncertain. The Constitution may be amended to reverse constitutional decisions of the Court. New members of the Court may be appointed with the hope or expectation that they will vote to overrule specific past decisions. Any federal judge, including justices of the Court, may be impeached, convicted, and removed from office.


A.     Amendment

The Constitution is not easily amended, but amendment is one way to reverse decisions of the Court. Rather than amend the Constitution to control the Court’s use of judicial review, the amendment process is far more commonly used to address other issues, such as allocation of government powers, the operation of the electoral system, or the creation of new fundamental rights. There are two basic modes of amendment specified by Article V. Amendments may be proposed either by a two-thirds vote of each House of Congress or by a constitutional convention called by Congress upon the application of two-thirds of the states. In either case, a proposed amendment must be ratified by three-fourths of the state legislatures or state ratification conventions, whichever method of ratification Congress specifies.


1)      Non-contemporaneous Ratification

Article V contains no express requirement that ratification be a product of contemporaneous action, but the Court has hinted that such a requirement might be implied. In Dillon v. Gloss, the Court held that Congress could impose a reasonable time limit on ratification of a proposed amendment and offered the gratuitous observation that nothing in Article V “suggests that an amendment once proposed is to be open for ratification for all time.”


2)      Convention Calls

Article V does contemplate the possibility of amendments proposed by a convention, but we have never had two-thirds of the states unite in a call for such a convention.


3)      Rescission Before Ratification

In Coleman v. Miller, the Court established the principle that rescission is a political question not justiciable by courts. Congress ultimately decides whether to give effect to a purported rescission.


4)      “Unconstitutional” Amendments?

There is one explicit limit on the substance of amendments. Article V forbids elimination of the states’ equal representation in the Senate except by consent of an affected state. However, taken literally, that might not prevent repeal of Article V’s consent clause by ordinary amendment, followed by another amendment that reapportioned the Senate by population. This leads to the general and more speculative issue of whether there is some implicit limit on the substance of amendments. The prevailing opinion is that there is not; any amendment, no matter how obnoxious to the existing spirit of the Constitution, is valid so long as it is adopted in the constitutionally proscribed fashion.


B.     Appointment

Presidents frequently try to influence the Court’s constitutional decisions by their power to appoint justices. An appointment to the Court consists of a presidential nomination followed by senatorial confirmation of the appointment. About one in every four nominees has failed to be confirmed. Generally, when presidents make appointments to the Court with the intent of remaking constitutional law, they have existing law in mind. The problem with this is that justices serve well beyond the time for resolution of an immediate issue, and their views on issues that are not even on the constitutional horizon when they are appointed cannot easily be known in advance. Moreover, justices sometimes change their views once they begin to serve on the Court. A final problem with affecting constitutional decisions by appointment is that it takes a lot of vacancies to alter the Court’s direction dramataically.



C.     Impeachment

Impeachment is another mode of affecting constitutional decisions, although it is rarely employed. Article II, section 4 provides that “all Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” The practical reality of impeachment is that it is a device to remove a person from an office of public trust upon the occurrence of any behavior, criminal or not, that amounts to a serious abuse or breach of public trust.



II.                Congressional Power to Control the Jurisdiction of Federal Courts


A.     Overview

Two provisions of Article III give Congress considerable authority to restrict the jurisdiction of all federal courts, including the Supreme Court. But this authority is not unlimited.


1)      Power to Establish Federal Courts

Art. III, sec. 1 locates the federal judicial power in one Supreme Court and “in such inferior Courts as the Congress may from time to time ordain and establish.” This provision probably permits Congress to eliminate all federal courts. Subject to the general limits discussed below, this provision certainly permits Congress to curtail at its pleasure the jurisdiction of the federal courts.


2)      Exceptions to and Regulations of Supreme Court Appellate Jurisdiction

Art. III, sec. 2 gives the Supreme Court appellate review of all cases within the federal judicial power (except those in which the Court has original jurisdiction) “with such Exceptions, and under such Regulations as the Congress shall make.” This is commonly referred to as the “Exceptions Clause.”


B.     Defining the Scope of the Exceptions Power

The language of the Exceptions Clause, read in isolation, may appear to grant Congress discretion to make exceptions to the Court’s appellate jurisdiction. From this narrow textual perspective, the only question is whether a particular jurisdictional limitation imposed by Congress constitutes an exception to the Court’s appellate jurisdiction.


1)      The Traditional or Plenary Power View

This views takes the stance that, in essence, Congress is granted plenary power to withdraw subject matters from the Court’s appellate jurisdiction. Thus if Congress were to provide that the Supreme Court could not exercise appellate jurisdiction over cases arising under the First Amendment to the Constitution, the Exceptions Clause would provide a textual basis for the congressional action.


2)      Mandatory Interpretations

This view takes the stance that the Exceptions Clause is part of the more comprehensive text of Article III, and perhaps our interpretation should take that larger perspective into consideration. Art. III provides that the judicial power “shall extend to all cases arising under the Constitution [and] the Laws of the United States.” Some have argued that this language requires that some Article III court – either the Supreme Court or an inferior court – must be available to hear such cases – i.e., the federal judicial power must extend to all cases arising under the Constitution or federal laws. Under this view, Congress may not use its exceptions power to eliminate the Court’s appellate jurisdiction over cases arising under the Constitution unless, at a minimum, Congress vests jurisdiction over such cases in an inferior federal court created pursuant to Article III.


C.     Ex parte McCardle (U.S. 1869)

The leading case construing the exceptions power is Ex parte McCardle.


1)      Facts

McCardle was a newspaper editor in Vicksburg, MS, who was arrested by federal officials for writing a series of newspaper articles that were highly critical of Reconstruction and especially of military rule in the South following the Civil War. He filed a petition for a writ of habeas corpus pursuant to a statute adopted in 1867 that permitted federal courts to grant habeas corpus relief to anyone held in custody in violation of the Constitution by either a state or the federal government. Prior to the 1867 statute, federal courts could only hear habeas corpus petitions from those who were held in federal custody.


2)      Procedure and Holding

On March 9, 1868, the Supreme Court heard oral arguments. However, before a decision was granted, parts of the 1867 statute were repealed by Congress. The Supreme Court thus considered whether it had jurisdiction to hear McCardle’s constitutional claims in light of the recently adopted statute denying its authority to hear appeals under the 1867 Act that was the basis of jurisdiction in McCardle’s petition. The Court held that it could not decide the case because Congress’s authority to create exceptions and regulations to the Court’s appellate jurisdiction.


3)      Analysis

In its opinion, the Court took the Exceptions Clause at face value, stating that “[t]he power to make exceptions to the appellate jurisdiction of this court is given by express words.” Therefore, once Congress exercised its exceptions power to divest the court of jurisdiction, there was nothing for the Court to do but to dismiss the case. From this perspective, McCardle lends strong support to the traditional or plenary power view.


4)      Effect

Supporters of contemporary proposals to restrict Supreme Court jurisdiction cite McCardle as precedent. They contend that McCardle establishes that Congress may prevent Supreme Court review of constitutional issues. The fact that Congress intends to change the substantive law by limiting jurisdiction is deemed irrelevant.


5)      Arguments of Opponents of Jurisdiction Stripping

Some contend that McCardle is easily distinguished from contemporary attempts to prevent Supreme Court review of topics such as abortion and school prayer. In McCardle, even after the repeal of the 1867 Act, the Supreme Court still had the authority to hear McCardle’s claims under the 1789 Judiciary Act, which allowed federal courts to grant writs of habeas corpus to federal prisoners. In other words, in McCardle, the Supreme Court was considering the constitutionality of a statute that did not completely preclude Supreme Court review, but rather only eliminated one of two bases for its authority. The McCardle Court expressly indicated that it still had jurisdiction in habeas corpus cases notwithstanding the repeal of the 1867 Act. Essentially, the case would have to go through the Circuit Courts first, however.


6)      Scope of McCardle

Though it upheld congressional repeal of its jurisdiction the Court noted that McCardle had other avenues by which he could bring a habeas petition before the federal courts, including the Supreme Court. The hint was that if Congress had attempted to eliminate all federal habeas jurisdiction, it might have exceeded its authority. From this nugget later thinkers have refined a series of possible limits on the congressional power to restrict the jurisdiction of federal courts.


D.     Limits on Congressional Power to Curtail Federal Court Jurisdiction

There are two types of limitations on congressional powers to restrict the jurisdiction of federal courts: “internal” and “external” powers. Internal limits are connected to Art. III and the structural relationship of the federal courts and Congress. They are “internal” because they are part of, or inside, the grant of judicial power of Art. III. External limits are constitutional limits that have nothing to do with Art. III. Congress may not curtail jurisdiction in a way that violates some other constitutional guarantee, such as equal protection or due process. They are external limits because they are outside Art. III. Some of these limits are firmly established by precedent, and others lie in the realm of custom and theory.


1)      U.S. v. Klein and Attempts to Dictate the Outcome of Pending Litigation


a)      Facts

Klein involved a claim for compensation from the federal government for property destroyed by the Union army during the Civil War. By law compensation was due only to people who were loyal to the United States during the Civil War. Klein, who had accepted President Johnson’s general presidential pardon following the war, had proven his loyalty in the lower federal courts by relying upon a line of cases that held that recipients of such pardons were conclusively presumed to be loyal. While the government’s appeal of Klein’s compensation award was pending, Congress enacted legislation that provided that recipients of Johnson’s general pardon were presumed to be disloyal, and directing federal courts to dismiss any compensation case brought by such a person. The Supreme Court held the legislation to be unconstitutional as applied to Klein.


b)      Rationale and Scope

While acknowledging Congress’s power to create exceptions and regulations to the Court’s appellate jurisdiction, the Supreme Court said that Congress can not direct the results in particular cases. Essentially, no branch of federal government may usurp the essential functions of any other branch. As such, Congress may alter the substantive law to be enforced by federal courts, and may specify the rules of evidence or procedure to be applied by those courts, but Congress may not direct the courts on how to decide. If Congress wants to change the rules it must do so generally, by a law that applies with neutral force to all litigants. The vice in Klein was Congress’s attempt to leave undisturbed the governing substantive and procedural law but to command the courts what inference to draw from the evidence before them.


2)      Jurisdictional Alterations Destroying the Supreme Court’s “Essential Role”

In a famous Harvard Law Review article, Henry “Hank the Tank” Hart wrote that “exceptions must not be such as will destroy the essential role of the Supreme Court in the constitutional plan.” This statement begs the question: What is the “essential” role of the Court? Some argue that the elimination of all the Court’s appellate jurisdiction would be inconsistent with its essential function as a creator of a uniform body of federal constitutional law. Others argue that the Court’s essential role in the exercise of appellate jurisdiction is whatever Congress says it is. The holding of McCardle lends support to the latter view; the Court’s dicta in McCardle about the availability of other appellate avenues lends support to the former view. This debate is the same as the debate between the plenary power view and the mandatory interpretations view; and this debate is important because the Court has not had the occasion to deliver its view since Congress has never been willing to so completely destroy the Court’s appellate jurisdiction.


3)      Jurisdictional Alterations Destroying the “Essential Role” of Lower Courts

Even though Art. III gives Congress the power to eliminate lower federal courts and to curtail their jurisdiction, it is possible that this power may be exercised in a way that is constitutionally impermissible. The Court has never decided whether Congress could eliminate the Supreme Court’s appellate jurisdiction and all federal lower court jurisdiction over constitutional cases. As the mandatory interpretation view is argued above, some believe that Art. III commands that the federal judicial power shall extend to all constitutional cases. However, a strict reading of the scant precedent supports the plenary power view.


4)      Jurisdictional Alterations that Violate Other Parts of the Constitution

No matter whether Congress is otherwise entitled to restrict federal court jurisdiction, it may not do so in a manner that violates some other constitutional guarantee. For example, suppose Congress enacts legislation providing that the Supreme Court may not review cases where the petitioner is a woman. This sex-based disability would certainly be violative of the equal protection clause of the Fifth Amendment’s due process clause.


E.     Congressional Control of Lower Federal Court Jurisdiction

Would a statute precluding lower federal courts from hearing challenges to state laws regulating abortion or permitting prayer in schools be constitutional? Debate in scholarly literature is lengthy; and no consensus has emerged. There are four distinct positions that have arisen:


1)      Approach 1: Federal Courts Must Have the Full Judicial Power

Basically, the approach indicates that although Congress has a choice regarding whether to establish lower federal courts, once they are created, they must have the judicial power to decide all matters described in Article III. By this view, all attempts to restrict jurisdiction would be unconstitutional. Major problem: this theory has never been followed in American history. Therefore, after 200 years of contrary practice, this argument is untenable.



2)      Approach 2: Congressional Discretion to Decide Jurisdiction

A second approach is that Congress has authority to determine the jurisdiction of the federal courts because Congress has discretion as to whether to establish such tribunals. The literal language of Article III indicates that Congress need not create lower federal courts at all. Some conclude from this that because Congress need not even establish such courts, Congress can create them with whatever jurisdiction it desires. This position does find support in SC precedents. However, the SC precedents are possibly distinguishable because Congress did not foreclose all lower federal court review.


3)      Approach 3: Constitutional Requirement for Some Federal Courts

Some commentators urge that the existence of lower federal courts is constitutionally required, at least for some types of claims. However, opponents to this view argue that this view disregard the history of what the framers intended.


4)      Approach 4: Specific Constitutional Limits

Congress has discretion both to create lower federal courts and to determine their jurisdiction, but Congress may not restrict the jurisdiction in a manner that violates other constitutional provisions. Essentially, the argument is that Congress’s power to restrict jurisdiction – like all congressional powers – cannot be exercised in a manner that violate constitutional rights (i.e., equal protection, due process, etc.).



III.             The Political Question Doctrine


A.     Overview

This doctrine treats certain kinds of cases as non-justiciable “political questions.” The label is unfortunate because the doctrine does not mean that cases involving political parties and political issues are non-justiciable.


1)      Basis of the Doctrine

The political question doctrine has a constitutional core and a prudential (policy-driven) periphery. The constitutional core consists of those issues that courts may not decide because the Constitution mandates that they be finally decided by other branches of the federal government. The prudential periphery consists of those issues that the Court thinks are best left undecided by courts, because there is insufficient information upon which to decide, or judicial decision would undermine the courts or compromise some other important principle of democratic governance.


B.     Baker v. Carr: The Reigning Doctrine

In Baker v. Carr (U.S. 1962), the Court delivered a “definitive” statement of the political question doctrine. The plaintiffs in Baker contended that the failure of the Tennessee legislature to reapportion itself for more than sixty years, as required by the Tennessee constitution, was also a violation of the 14th Amendment’s equal protection clause. The Court concluded that the claim did not present a political question, reciting six factors that identify political questions. If any one of these factors is present in a case, it is a non-justiciable political question. None were held to be present in Baker. The six factors are as follows:




1)      Constitutional Commitment of Decision of the Issue to Another Branch

If a “textually demonstrable commitment” is in the Constitution allocating the decision of the issue “to a coordinate political department” (Congress or the President), then the issue presents a political question.


2)      Lack of Standards for Decision

The issue is a political question if there are no “judicially discoverable and manageable standards for resolving” the issue.




3)      Decision Requires a Judicially Inappropriate Policy Choice

The issue is deemed a political question if the case presents “the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion.”


4)      Decision Would Lack Respect for Congress or the President

The issue presents a political question if the court cannot decide a case without “expressing a lack of respect due coordinate branches of government.”


5)      Political Decision Already Made

The issue presents a political question if there exists “an unusual need for unquestioning adherence to a political decision already made.”


6)      Potential for Embarrassment

The issue presents a political question if a judicial decision would create “the potentiality of embarrassment from multifarious pronouncements by various departments on one subject.”


C.     Chemerinsky States the Baker Test is a Piece of Shit

Chemerinsky states that virtually every case considering the political question doctrine quotes the Baker language. But these criteria seem useless in identifying what constitutes a political question. In other words, it is impossible for a court or a commentator to apply the Baker test to identify what cases are political questions. As such, it is hardly surprising that the doctrine is described as confusing and unsatisfactory. Chemrinsky believes that the political question doctrine is best understood by examining the specific areas where the Supreme Court has invoked the doctrine. Although this harsh criticism exists, Denning noted that the Baker test must still be applied since it is the standard that has been set by the Court.


D.     Justifications for the Political Question Doctrine

Defenders of the political question doctrine generally make the following arguments:

(1)    It is simply better for the federal judiciary to avoid deciding certain cases, especially so as to preserve what may be perceived as a fragile political legitimacy.

(2)    The political question doctrine allocates decisions to branches of government that have superior expertise in particular areas.

(3)    The political question doctrine is defended on the ground that the federal court’s self-interest disqualifies them from ruling on certain matters.

(4)    The political question doctrine is justified on separation of powers grounds as minimizing judicial intrusion into the operation of other branches of government. The argument is that certain cases would require day-to-day oversight of executive or legislative conduct, which is simply not feasible.


E.     Criticisms of the Political Question Doctrine

Critics, such as Professor Martin Redish, argue that “the political question doctrine should play no role whatsoever in the exercise of judicial review power.” Critics generally make the following arguments:

(1)    The judicial role is to enforce the Constitution – as such, it is inappropriate to leave constitutional questions to the political branches of government. The argument is that matters are placed in a Constitution to protect them from majoritarian control; judicial review serves to effectuate and uphold the Constitution. Therefore, it is inappropriate to relegate constitutional issues to the political branches of government.

(2)    Other critics state that the judiciary’s legitimacy is robust; as such, a judiciary that ducks controversial issues to preserve its credibility is likely to avoid judicial review where it is needed most, to restrain highly popular, but unconstitutional government actions.

(3)    Critics also argue that the political question doctrine confuses deference with abdication – the Court should only hesitate in some areas before ruling against other branches; this does not mean that those areas should be deemed non-justiciable.


F.      The Political Question Concerning Impeachment – Nixon v. United States

A federal district court judge, Walter Nixon, had been convicted of making false statements to a grand jury. However, he refused to resign from the bench and continued to collect his salary while in prison. House adopted articles of impeachment, and the Senate, in accord with its rules, created a committee to hold a hearing and make a recommendation. They did so, recommending removal from office and the Senate voted accordingly.


1)      Issue

Nixon argued that the Senate’s procedure violated Art. I, §3, of the Constitution, which provides that the “Senate shall have the sole power to try all Impeachments.” Nixon maintained that this meant that the entire Senate had to sit and hear the evidence; therefore, the use of a committee was unconstitutional.


2)      Holding and Rationale

The Court extended the use of the political question doctrine by holding that challenges to the impeachment process are non-justiciable. Essentially, the judiciary will not review the Senate’s use of a committee to hold a hearing and make a recommendation on an impeachment. However, the question of whether all challenges to impeachment are non-justiciable political questions remains open. Rehnquist stated that the language and structure of Art. I, §3 demonstrate a textual commitment of impeachment to the Senate. The rationale for this holding follows:

(a)    The Court explained that the framers intended that there be two proceedings against officeholders charged with wrongdoing: a judicial trial and legislative impeachment proceedings. These two proceedings were deliberately separated to avid raising the specter of bias and to ensure independent judgments; therefore, judicial review of the Senate’s trial would introduce the same risk of bias as participation in the trial itself.

(b)    Furthermore, the Court stated that judicial review of impeachment would be inconsistent with the framers’ views of impeachment in the scheme of checks and balances. The framers saw impeachment as the only legislative check on the judiciary; judicial involvement would undercut this check on judges.



§3: Federalism and the Federal Legislative Power


I.                   Federalism, Default Rules, McCulloch v. Maryland and Term Limits


A.     Congress Must Have Express or Implied Powers

A basic principle of American government is that Congress may act only if there is express or implied authority to act in the Constitution; states, however, may act unless Constitution prohibits the action. Therefore, in evaluating any act of Congress, there are always two questions:

(1) Does Congress have the authority under the Constitution to legislate?

(2) If so, does the law violate another constitutional provision or doctrine, such as by infringing separation of powers or interfering with individual liberties?


B.     McCulloch v. Maryland (1819)


1)      Factual Background

Congress created a Second Bank of the United States in 1816 while the country was facing serious economic problems. The Bank did not solve the country’s economic problems and, indeed, many blamed the bank’s monetary policies for aggravating a serious depression. States were particularly peeved with the Bank. As such, many states adopted laws prohibiting the bank’s operations within its borders. Others, such as Maryland, taxed it. The MD law required that any bank not chartered by the state pay an annual tax of $15M or 2% of notes outstanding.


2)      Specific Issue

The specific issue was whether the State of Maryland could collect a tax from the Bank of the United States. Chief Justice Marshall used the case as an occasion to broadly construe Congress’s powers and narrowly limit the authority of state governments to impede the federal government. Although this was the main issue, Marshall’s opinion focused on two main questions: (1) does Congress have the authority to create a Bank of the United States?, and (2) is a state tax on the bank unconstitutional?


3)      Congress’s Authority to Create a Bank of the United States

Considering the issue of Congress’s authority to create a Bank of the United States, Marshall made four arguments:


·         Point # 1Historical Practice Established the Power of Congress to Create a Bank

Essentially, Marshall invoked the history of the First Bank as authority for the constitutionality of the second bank. This contention, that historical experience justifies the constitutionality of a practice, is a type of argument that often appears in SC opinions. It should be noted, however, that there is a question as to whether historical practice should have normative significance in resolving questions about constitutionality. For instance, Justice Holmes noted that the fact that laws may be “natural and familiar . . . ought not to conclude our judgment upon the question whether the statutes [are constitutional.]”


·         Point #2: Marshall Refuted Argument That States Retain Ultimate Sovereignty Because of Ratification of the Constitution

The view that states retain ultimate sovereignty because of ratification of the Constitution is sometimes called “compact federalism.” This view sees states as sovereign because they created the United States by ceding some of their power and ratifying the Constitution. Marshall emphatically rejected this view and contended that it was the people who ratified the Constitution, and thus, people are sovereign, not the states.


i)        Questioning of Marshall’s Reasoning

This reasoning can be questioned. The Constitution was not ratified by a national plebiscite; it was ratified by the States. Although Marshall’s view has controlled throughout American history, there have been challenges and reassertions of the theory of compact federalism. More recently, in United States Term Limits v. Thornton, Justice Thomas, in dissent, expressed the view that states retain ultimate sovereignty except in those areas where the Constitution expressly delegates power to the federal government.


·         Point 3: Scope of Congressional Power under Article I

It is important to note that the Court broadly described Congress’s authority even before addressing the necessary and proper clause. Marshall noted that the Constitution can not contain accurate details of the subdivisions of all of its great powers without partaking of the same prolixity of a legal code. Marshall’s ultimate conclusion is that Congress is not limited only to those acts specified in the Constitution; instead, Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority – this is a dramatic expansion in the scope of congressional authority.


·         Point 4: The Meaning of the Necessary and Proper Clause

Article I, §8 concludes by granting Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Marshall said that this provision makes it clear that Congress may choose any means, not prohibited by the Constitution, to carry out its express authority. Marshall writes: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”




i          Test for Whether the Necessary and Proper Clause Applies

A law is constitutional under the Necessary and Proper Clause if:

1)      End is within the scope of the Constitution.

2)      End is legitimate

3)      Means must be:

a)      appropriate – meaning:

- plainly adapted to that end

- not prohibited

b)      consistent with the letter and spirit of the Constitution


ii        Three Sub-Points Concerning the Necessary and Proper Clause

First, Marshall rejects the restrictive interpretation of the necessary and proper clause. Necessary here means useful or desirable, not indispensable or essential. Second, Marshall made a structural argument, noting that the necessary and proper clause is placed in Art. I, §8 which expands Congress’s powers, and not §9 which limits them. Finally, however, the Court rejected any contention that the N&P clause gives Congress limitless authority, thus reaffirming Marbury and the power of the judiciary to review the constitutionality of federal laws.


iii      Exam Tip on Necessary and Proper Clause

A common error is to assert that Congress can enact some law under its “necessary and proper” power. However, there is no necessary and proper power. This clause simply gives Congress great discretion in selecting the means to achieve one of its specified powers. It isn’t an independent power – it only enables Congress to choose how to achieve some other federal power.


4)      The Constitutionality of Maryland’s Tax

Marshall explained that the power to create the bank includes a power to preserve its existence. However, he pointed out that “the power to tax involves the power to destroy; [and] that the power to destroy may defeat and render useless the power to create . . .” Thus, the Court concluded that the state may not tax the Bank of the United States because such exactions could greatly impede its operation and potentially even tax it out of existence.


·         Supremacy Argument

Power to create = Power to Preserve (Power of Congress) (Supreme)

Power to tax = power to destroy (State)

Power to create is incompatible with the power to destroy. The Supremacy Clause implies that Congressional power can not be subordinated to the states. As such, the power for the state to tax is unconstitutional


·         Sub-Point on Tax of those Outside of the State

The Court also noted that a state tax on the Bank essentially was a state tax on those in other states. Those who were being taxed therefore were not represented in the state imposing the tax, and the tax was thus illegitimate.


5)      Establishment of Several Crucial Aspects of Constitutional Law

This case establishes several crucial aspects of constitutional law. First, by rejecting “compact federalism,” this case emphatically declares that the federal government is supreme over the states and that the states have no authority to negate federal actions. Second, the Court expansively defines the scope of Congress’s powers. Finally, the Court limits the ability of states to interfere with federal activities, such as by imposing taxes or regulations on the federal government. This framework still exists today.


C.     Default Rules

Default rules are rules that are applied in the absence of an agreement to the contrary. McCulloch and United States Term Limits deal with the following question: how do we allocate power between the federal and state governments, when the constitutional text is silent? Essentially, there are two options:

1)      States are free to do what Constitution doesn’t specifically prohibit (unless state conflicts with valid law of Congress). (Term Limits - Thomas, J., dissent). (10th Amend.).

2)      Even absent explicit prohibition, states may not enact laws incompatible with purposes for which Constitution was proposed & ratified. (McCulloch - Marshall, Term Limits - Stevens).


The two rules above result in the question: For what purposes was the Constitution proposed and ratified? Purposes:

1)      Stronger Nat’l Government

2)      Separation of Powers – to prevent concentration of power

3)      Provide means to enforce federal law

4)      Secure uniformity with regard to certain important governmental powers


Essentially, the question of which default rule should apply goes back to the question of whether states retain ultimate sovereignty or whether that sovereignty rests in the people. The default rule established by Marshall has historically been applied. However, there are strong arguments in Justice Thomas’ approach. Be able to argue both sides, but remember that historically Marshall has ruled – even absent explicit prohibition, states may not enact laws incompatible with purposes for which the Constitution was proposed and ratified.


D.     United States Term Limits v. Thornton (1995)

In this case, the Court held that state-imposed term limits on elective federal office violated the “‘fundamental principle of our representative democracy,’ embodied in the Constitution, ‘that the people should choose whom they please to govern them.’” While the Court in effect held that the federal government was immune from state laws that interfered in this manner with the process of electing members of Congress, the Court did not rely on the general immunity principle as such, but instead the majority found that the state-imposed term limits transgressed specific clauses in the Constitution that defined what the Court perceived to be the exclusive qualifications for those federal offices, namely, age, residence, and citizenship. Relying on a combination of constitutional text, Framer’s intent, and democratic theory, a five-justice majority concluded that the states possessed no power to add the qualifications for the federal offices described in the Qualifications Clause.


1)      A Look at the Statute in Thornton

The state statute at issue in Thornton did not actually disqualify anyone from running for federal office. While the statute denied ballot access to candidates who had served more than a specified number of terms, a candidate subject to these restrictions could still theoretically be elected through write-in ballots. Despite this possibility, the Court concluded that the operation of the state’s ballot restriction was, in effect, to impose a term limit qualification since realistically few, if any, candidates would be elected by reliance on write-in votes. The Court’s treatment of this issue further underscored the majority’s complete antipathy for state-imposed term limits on federal elective office. Thus, after Thornton, the only way to impose term limits is by amending the Constitution.


2)      Class Notes Rationale for this Holding

1) Qualifications are set in Article I (Powell )

2) Other states might forfeit suit

3) Representatives of National Government

4) Permitting states to add qualifications imperils uniformity

5) “National Character


3)      Non-Textual, Structural Limit on the States

In Thornton, the petitioners argue that the historical and textual materials discussed in Powell do not support the conclusion that the Constitution prohibits additional qualifications imposed by States. In the absence of such a constitutional prohibition, petitioners argue, the Tenth Amendment and the principle of reserved powers, require that States be allowed to add such qualifications.



·         Court’s Response

There are two reasons the Court disagrees. First, the power to add qualifications is not within the “original powers” of the States, and thus is not reserved to the States in the Tenth Amendment. Second, even if States possessed some original power in this area, the Framers’ intended the Constitution to be the exclusive source of qualifications for members of Congress, and the Framers thereby “divested” States of any power to add qualifications.


·         Important Language of the Holding

“[Permitting] individual states to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications undermining the uniformity and the national character that the Framers envisioned and sought to ensure. [Such] a patchwork would also sever the direct link that the Framers found so critical between the National Government and the people of the United States.”



II.                Commerce Clause


A.     An Overview of the Commerce Clause – Article I, §8 – and Pressing Questions

“The Congress shall have the power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . .” The Commerce Clause has traditionally spawned a great deal of Supreme Court discussion. Throughout the history of the Court concerning the commerce clause, there are three questions the Court is considering:

(1)    What is “commerce”? Is it one stage of business or does it all aspects of business and even life in the United States?

(2)    What does “among the several states” mean; is it limited to instances where there is a direct effect on interstate commerce or is any effect on interstate activities sufficient?

(3)    Does the Tenth Amendment limit Congress; if Congress is acting within the scope of the commerce power, can a law be declared unconstitutional as violating the Tenth Amendment?


In a similar vein, here are the questions that I took down in class:


Questions to ask of the following several cases:

1)      How do we locate the limits of Congress’ enumerated powers? Where do we look?

2)      Whether, despite the delegations, are there categories that are just off-limits to Congress? Could Congress do something under its Commerce power and nonetheless be prevented from taking such action because it infringes on some power of the state?

3)      Who should police the limits? Possible answers: the courts (judicial review), Congress, or . . .


How do you prevent federal power from swamping the states? This is the fundamental question behind all of these cases.


More technical questions:

1)      What precisely counts as commerce? What constitutes commerce among the several states?

2)      To what extent can Congress regulate intrastate commerce to protect interstate commerce?

3)      Does it matter why Congress is exercising its Commerce power? Is it in the service of some moral or social aim? Would this be better done under the states’ police powers?

4)      How should the court treat claims or take Congress’ word in which Congress states that a certain thing involves interstate commerce?


B.     The Starting Point – Gibbons v. Ogden (1824)


1)      Facts Summary

NY had granted Fulton and Livingston a monopoly on steamboat navigation in NY waters. They granted Ogden a license to operate a steamboat from NYC to NJ. Gibbons held a license from the US to navigate a steamboat in “coastal trade” and was operating a steamboat between NY and NJ, in competition with Ogden. Ogden obtained an injunction in the NY courts restraining Gibbons from further operation of his steamboat in NY waters. Gibbons sought and obtained review in the SC.


2)      What is “Commerce”?

The Court first considered what “commerce” means. Marshall stated: “Commerce undoubtedly is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” In other words, according to Marshall, commerce includes all phases of business, including navigation, which was the issue in this case.


3)      What is “Among the States”?

The Court then considered the meaning of “among the states.” The Court stated: “The word ‘among’ means intermingled with. A thing which is among others, is intermingled with them. Commerce among the states, cannot stop at the external boundary of each state, but may be introduced into the interior.” Essentially, as “comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one . . . The completely internal Commerce of a State, then, may be considered as reserved for the State itself.” Moreover, the definition of ‘among’ adopted in this case neither excluded all intrastate commerce nor included all interstate commerce. As such, the definition required line-drawing and case-by-case inquiry as to whether a particular activity has interstate effects. This leave a lot to the facts of each case and interpretation.


4)      Does State Sovereignty Limit Congressional Power?

According to this case, “This [commerce] power, like all others vested in Congress, is complete in itself, may be exercised to the utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.” In other words, Congress has complete authority to regulate all commerce among the states. When acting under its commerce clause authority, Congress can regulate in the same way as it could if no state governments existed. The Court said that the sole check on Congress is the political process, not judicially enforced limits to protect the states. However, it should be noted that the Court has not consistently followed this approach. Historical analysis below will demonstrate.


C.     Cases Before 1887

In the time period between Gibbons and 1887, the SC had little occasion to consider the scope of the commerce power. The Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890 ushered in a new era of federal economic and regulatory regulation.


D.     Cases Between 1887 and 1937 – The Era of “Dual Federalism”

During this period, the SC espoused a philosophy often termed “dual federalism.” Dual federalism was the view that the federal and state governments were separate sovereigns, that each had separate zones of authority, and that it was the judicial role to protect the states by interpreting and enforcing the Constitution to protect the zone of activities reserved to the states. Dual federalism is embodied in three doctrine, which are as follows:


1)      Definition of “Commerce”

The Court narrowly defined the meaning of commerce so as to leave a zone of power to the states. Specifically, the Court held that commerce was one stage of business, distinct from earlier phases such as mining, manufacturing, or production. This distinction is based on several assumptions: that it makes sense to distinguish commerce from other stages of business; that the Constitution requires a rigid zone of activities to be left to the states; and that it is the judicial role to protect this zone.


·         The Direct-Indirect Distinction - United States v. E.C. Knight (1895)

In this case, the SC held that the Sherman Antitrust Act could not be used to stop a monopoly in the sugar refining industry because the Constitution did not allow Congress to regulate manufacturing. Essentially, the law could not be applied because the monopoly was in the production of sugar, not the commerce of sugar. Although the distinction seems arbitrary and the Court acknowledged this, the effect on commerce was “indirect” and thus outside the scope of federal power.


2)      “Among the States” Requires a Direct Effect on Interstate Commerce

The second major aspect of the Court’s approach to the commerce clause during this era was the requirement that there be a direct effect on interstate commerce. The problem, of course, is in drawing a meaningful and useful distinction between direct and indirect effects. Yet, the Court never formulated a clear or consistent way to distinguish direct from indirect effects.


·         “Stream of Commerce” Approach – Swift & Co. v. United States

On approach that the Court often used was to allow Congress to regulate to protect the stream of commerce. In Swift, the application of the Sherman Antitrust Act was upheld in connection with a price fixing agreement among intrastate meat packers. The SC stated that although the stockyard was intrastate, it was only a temporary stop for the cattle. Stockyards were “in a current of commerce among the States, and the purchase of the cattle is a part and incident of such commerce.” This approach further allowed Congress to prohibit the sale of impure or adulterated food or drugs, to require retail labeling for items traveling in interstate commerce, and to restrict the sale of intoxicating beverages to Indians. However, this stream of commerce approach was no used consistently, thereby damaging its credibility.


·         The Protective Principle - Shreveport Rate Cases

In these cases, the Court upheld the ability of the ICC to set intrastate railroad rates because of their direct impact on interstate commerce. Basically, the railroad was required to charge the same rates for shipments to Marshall, TX, whether from Shreveport, LA or Dallas, TX. The Court said that Congress “does possess the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end, although intrastate transactions of interstate carriers may thereby be controlled.”


3)      The Limits of State Sovereignty on Congressional Powers

Even if an activity was commerce and was among the states, Congress still could not regulate if it was intruding into the zone of activities reserved to the states. The Court concluded that the Tenth Amendment reserved control of activities such as mining, manufacturing, and production to the states. Even federal laws regulating commerce among the states were unconstitutional if they sought to control mining, manufacturing, and production.


·         The Child Labor Case (Hammer v. Dagenhart)

A federal law prohibited the shipment of interstate commerce of goods produced in factories that employed children under the age of 14 or worked them over 8 hours a day. Although the law only regulated goods in interstate commerce, the Court declared it unconstitutional because it controlled production. This realm was entrusted purely to state authority so it could not be regulated by the federal government without infringing on a state’s sovereign right to control local matters.


·         The “Commerce-Prohibiting” Technique - The Lottery Case

This case took a different stance on state sovereignty, allowing Congress to pass a law prohibiting items from being in interstate commerce. The Court rejected the argument that the federal law intruded on state government prerogatives. This case simply shows that the Court was not necessarily consistent during this era in defining a zone of activities reserved to the states.


E.     The Commerce Clause from 1937 to 1995

In the period prior to 1937, there were a number of pressures mounting for a dramatic change in how the Commerce Clause was interpreted. The decisions of the previous era were intellectually vulnerable because they seemed based on arbitrary distinctions and were frequently inconsistent. The distinction between commerce and other phases of business made little sense in that mining, manufacturing and production all had obvious effects on commerce. The distinction between direct and indirect effects on commerce was inherently arbitrary. The decisions of the era – finding livestock to be in the stream of interstate commerce, but not chickens; allowing Congress to prohibit lottery tickets from being shipped in interstate commerce, but not goods made by child labor – were impossible to reconcile. As such, these factors, coupled with the New Deal proposals, led to a significant change in the Court’s interpretation of the Commerce Clause. Three primary cases demonstrate this change:


1)      NLRB v. Jones & Laughlin Steel Corp. (1937)

The holding in this case does not seem to be a radical departure from earlier decisions. The Court explained that the steel business was part of the stream of commerce and labor relations within it had a direct effect on commerce. However, the Court’s opinion did signal a major shift in the law. The Court flatly declared that “the fact that employees . . . were engaged in production is not determinative.” Further, “the fundamental principle is that the power to regulate commerce is the power to enact all appropriate legislation for its protection and advancement, to adopt measures to promote its growth and insure its safety, to foster, protect, control, and restrain. That power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it.” This opinion clearly signaled a broader power of Congress and it was a major shift from the prior era.


2)      United States v. Darby (1941)

This case involved a challenge to the constitutionality of the FLSA, which prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage. The Court explicitly rejected the view that matters of “production” were left to state regulation. Perhaps more importantly, the Court expressly overruled Hammer v. Dagenhart and emphatically rejected the view that the Tenth Amendment limits Congress’s powers.



3)      The Aggregation Principle - Wickard v. Filburn (1942)

In this case, Farmer Filburn grew more wheat than his set quota and used the extra wheat on his own farm. The Court upheld the application of the Agricultural Adjustment Act, which was used to rule against Farmer Filburn. The Court rejected the distinctions which were crucial in the earlier era, between commerce and production, and between direct and indirect effects on commerce. These distinctions were no longer followed. Essentially, the Court held that even though Filburn’s own contribution to the demand for wheat (which was taken care of by growing beyond quota for his own use) may be trivial by itself, it is not enough to remove him from the scope of federal regulation, where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.” The point if that if all farmers did this, the whole goal of the federal regulation of creating a demand for wheat so that farming would be profitable would be thwarted.


4)      Synthesis of These Cases – The Test for the Commerce Clause After 1937

Taken together, these cases expansively defined the scope of Congress’s commerce clause power. The Court essentially rid itself of the doctrines of the prior era. Simply stated, Congress could regulate any activity as long as there was a substantial effect on interstate commerce. The requirement was only that the activity, looked at cumulatively across the country, have a substantial effect on commerce, and sometimes even the word “substantial” was omitted. This approach gave Congress immense regulatory power under the commerce clause. In fact, between 1937 and 1995, not one federal law was declared unconstitutional as exceeding the scope of Congress’s commerce power. Basically, Congress had the power to regulate anything under the commerce clause so long as it was not violating another constitutional provision.


5)      Is this Broad Definition of the Commerce Power Desirable?

On the one hand, the complex problems of the twentieth century necessitate that Congress have the authority to act beyond the narrow confines created pre-1937. On the other hand, a core principle of American government is that the federal government has limited powers and the states control most of the governance. This broad reading of the commerce clause gives Congress almost unlimited power to regulate so long as they don’t violate another constitutional provision.


F.      Winds of Change – United States v. Lopez (1995)

In Lopez, a twelfth-grade student was arrested for carrying a gun on school property. He was convicted of violating the Gun-Free School Zones Act of 1990, which made it a federal offense to possess a firearm in a school zone. Lopez appealed on the ground that the Act was an unconstitutional exercise of Congress’s commerce power. The Supreme Court concluded that the law was unconstitutional because it was not substantially related to interstate commerce. After reviewing the history of decisions under the commerce clause, the Court identified the following three types of activities that Congress can regulate under the commerce clause:

(1)    Congress can “regulate the use of channels of interstate commerce.” Channels of interstate commerce include highways, interstates, waterways, airspace, etc.

(2)    Congress may legislate “to regulate and protect the instrumentalities of interstate commerce.” The Court said this includes the power to regulate persons and things in interstate commerce. Instrumentalities include the mail, railroads, etc.

(3)    THE CATCH-ALL: Congress may “regulate those activities having a substantial relation to interstate commerce.” Under this realm there are a number of factors to consider in deciding whether an activity has a substantial relation to interstate commerce; they are as follows:

·         Whether the nature of the regulated activity is commercial or non-commercial.

·         Whether the regulation is part of a national regulatory scheme whose efficacy would be undermined if Congress couldn’t reach the intrastate activity.

·         Whether there is a jurisdictional nexus in the statute itself –explicit language in the statute that restricts of connects the activity in some way to interstate commerce. [Lopez – gun traveled through interstate commerce.] This affects the burden of proof.

·         Whether the activity is within an  area of “traditional state concern”

·         Whether Congress made its findings plain in the bill itself

·         “Non-Infinity Principle” – “attenuated” – If the connection between the regulated activity and interstate commerce requires so many steps that it would basically remove all limits from the power of commerce, the that interpretation can not be the correct one – why? Simply because the enumeration of powers demands that there is something that is not enumerated – if you can not articulate a line between internal commerce and external commerce, then there is something wrong. The dissent in the Lopez case provides an example – there are too many steps between the possession of guns near schools and bad workers, ergo - interstate commerce.

The major problem with these factors is that the case gives no indication on how they are to be applied. There is no indication on which factors are more important or less important than others. Therefore, it is difficult to know when the catch-all provision is applicable.


The Court concluded that the presence of a gun near a school did not substantially affect interstate commerce and that therefore the federal law was unconstitutional. Rehnquist noted that nothing in the Act limited its application to instances where there was proof that the gun had been part of interstate commerce.


Dissent – In the dissent, Breyer argued that the judiciary should uphold a federal law as a valid exercise of the commerce power so long as there is a “rational basis” that an activity affects interstate commerce. His theory was that guns near school are disruptive to education, poorly educated students result in a poorly educated workforce, a poorly educated workforce results in bad products, and bad products effect interstate commerce. Note that there are a number of inferences to get from guns near school to effects on interstate commerce. This produces an example of the non-infinity principle.


G.     Affirming Change – United States v. Morrison (2000)

In Morrison, the issue before the SC was whether the civil damages provision of the Violence Against Women Act could be upheld as an exercise of Congress’s commerce clause authority. The Court reaffirmed the three-part test of Lopez that Congress may regulate (a) the channels of interstate commerce, (b) the instrumentalities of interstate commerce and persons or things in interstate commerce, and (c) activities that have a substantial effect on interstate commerce. The third part of the test was used to try to uphold the VAWA. The government produced extensive legislative history as congressional findings. However, the Court held that “the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of commerce clause legislation. The Court continued, stating that Congress was relying on a “but-for causal chain from the initial occurrence of the crime . . . to every attenuated effect upon interstate commerce.” By this reasoning, the Court explained, Congress could regulate all violent crimes in the US under the guise of its commerce power.


1)      Effect

Morrison goes further than Lopez in limiting the scope of Congress’s commerce power by narrowing the ability of Congress to regulate based on findings of a substantial effect on interstate commerce. At least in areas that the Court regards as traditionally regulated by the states, Congress cannot regulate non-economic activity based on a cumulative substantial effect on interstate commerce.


H.    Implications of Lopez and Morrison

Lopez was dramatic simply because it was the first time in almost 60 years that a federal law had been declared unconstitutional as exceeding the scope of Congress’s commerce power. Morrison proved Lopez is not an aberration, but the beginning of a major change in the Court’s approach to the commerce clause. The practical reality is that Lopez and the cases following it have opened a door to constitutional challenges that appeared to have been closed almost 60 years ago.



III.             The Tenth Amendment and Federalism as a Limit on Congressional Authority


A.     The Tenth Amendment - Generally

The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The key question about the Tenth Amendment is whether it is a judicially enforceable limit on Congress’s powers; can federal laws be declared unconstitutional as violating this constitutional provision?


1)      One Approach to this Question

One approach is that the 10th Amendment is not a separate constraint on Congress but rather is simply a reminder that Congress may only legislate if it has authority under the Constitution. Under this approach, a federal law could never be found unconstitutional as violating the 10th Amendment. Nonetheless, it could be invalidated as exceeding the scope of Congress’s powers under Article I or for violating another constitutional provision.


2)      Alternate Approach

The alternate approach is that the Tenth Amendment protects state sovereignty from federal intrusion. Under this approach, the Tenth Amendment is a key protection of states’ rights and federalism, and it reserves a zone of activity to the states for their exclusive control. Therefore, federal laws intruding into this zone should be declared unconstitutional by the courts.



B.     The Importance of Protection of State Sovereignty and Federalism

When the Supreme Court speaks of the value of federalism, usually three benefits or protecting state governments are identified:


1)      Decreasing the Likelihood of Federal Tyranny

The first justification for protecting states from federal intrusions is that the division of power vertically, between federal and state governments, lessens the chance of federal tyranny.


2)      States are Closer to the People and are More Likely to be Responsive

One of the strongest arguments for decentralized government is that, to the extent that the electorate is small, and elected representatives are more immediately accountable to individuals and their concerns, government is brought closer to the people and democratic ideals are more fully realized. Essentially, the smaller the area governed, the more responsive the government will be to the interests of the voters.


3)      States Can Serve as Laboratories for Experimentation

A final argument for protecting federalism is that states can serve as laboratories for experimentation. As Justice Brandeis stated, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel and social economic experiments without risk to the rest of the country.”


C.     Enforcement of the Tenth Amendment  - By Judiciary or Political Process

This is one of the essential debates concerning the Tenth Amendment – whether it is the role of the judiciary to enforce the Tenth Amendment and protect state sovereignty or whether it is an issue best left to the political process. On view is that judicial enforcement of federalism as a limit on Congress is unnecessary because the political process will adequately protect state government interests. However, on the other hand, the assumption that states’ interests are adequately represented in the national political process is questionable. Simply, in most elections, the interests of the voters are the focus of the attention, not the institutional interests of state or local governments. This debate has been a major part of the history of the Tenth Amendment and will likely continue.


D.     The Tenth Amendment in the Nineteenth Century

During this era, the Court viewed the Tenth Amendment simply as a reminder that Congress must have authority under the Constitution in order to legislate, and did not view the Tenth Amendment as a judicially enforceable limit on the legislative power. During this era, the Court adopted the view that once Congress is within the scope of its power, it can legislate the same as if there were no states at all. By this view, the Tenth Amendment is not a basis for invalidating laws that are within the scope of Congress’s legislative power. The sole check on Congress was the political process, not judicially enforced limits to protect the states.


E.     The Tenth Amendment From the Late Nineteenth Century Until 1937

From the later 19th century until 1937, the Court greatly circumscribed the scope of Congress’s powers, especially its commerce power. At the same time and as part of the same overall approach, the Court held that the Tenth Amendment reserves a zone of activities to the states for their exclusive control. Federal laws intruding into this zone were deemed unconstitutional. Moreover, the Tenth Amendment was used in this era not only as a limit on the commerce power but also on other federal legislative authority.


1)      The Child Labor Case (Hammer v. Dagenhart)

Dagenhart was the most significant case in this ear construing the Tenth Amendment in this manner. The Court stated: “the far-reaching result of upholding the act (law prohibiting interstate goods produced by children under 14) cannot be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the states over local matters may be eliminated, and thus our system of government destroyed.”


F.      The Tenth Amendment Between 1937 and 1990s

Between 1937 and the 1990’s, the Court expressly rejected the view that the Tenth Amendment is an independent limit on the legislative power and instead viewed it simply as a reminder that Congress may legislate only if there is authority in the Constitution. It should be noted that this is basically a return to the 19th century view that. Moreover, U.S. v. Darby overturned Dagenhart, and in Darby, the Court made it clear that a law is constitutional so long as it is within the scope of Congress’s power; the Tenth Amendment would not be used as a basis for invalidating laws.


1)      Deviating View: The Ten Year Reign of Nat’l League of Cities v. Usery (1976)

In this case, the Court declared unconstitutional the application of the FLSA, which required the payment of the minimum wage to state and local employees. Essentially, in this case, the Court held that Congress violates the Tenth Amendment when it interferes with traditional state and local government functions. However, the Court did not further explain what constituted a traditional function. In this case, the fifth key vote was Blackmun – in subsequent cases, he refused to allow the Court to extend the application of Usery.


a)      Hodel v. Virgina Surface Mining & Reclamation Association (1981)

In this case, the Court made it clear that Usery only applied when Congress was regulating state governments, not when Congress was regulating private conduct.


2)      Overruling Usery – Garcia v. San Antonio Metro. Transit Authority (1985)

In this case, the Court expressly overruled Usery. Justice Balckmun joined the side of the dissenters from Usery. Blackmun, writing for the majority, offered 2 reasons for overruling Usery

·         First, the Usery approach had proved unworkable – the classification of government functions as “traditional” or “integral” proved to be too arbitrary for courts to apply successfully.

·         Second, Blackmun argued that the protection of state prerogatives should be through the political process and not from the judiciary. He noted that “the built-in restraints that our system provides through state participation in federal government action” was sufficient to protect states’ autonomy. He went on to state that “the political process ensures that the laws that unduly burden the States will not be promulgated.”

It should be noted in a very Arnold Shwarzenegger (circa 1987) type of dissent, Justice Rehnquist stated that in time, this approach would be revisited. “I’ll be back.”


a)      The Judicial Role After Garcia

The Garcia opinion left one role for eth courts to play in enforcing federalism-based limits on the commerce power. Said Blackmun, “any substantive restraint on the exercise of [the commerce power] must find its justification in the procedural nature of [the political process], and it must be tailored to compensate for possible failings in the national political process rather than to dictate ‘a sacred province of state autonomy.’” As such, the post-Garcia role of the Court is to invalidate legislation that stems from an extraordinary defect in the national political process.


G.     The Tenth Amendment in the 1990’s and Beyond

Justice Rehnquist was right with his “I’ll be back” dissent in Garcia. Soon after Garcia, the Court revisited this subject, and since Garcia, the Court has created a “process federalism” doctrine that polices the political process in the name of preserving state autonomy. Essentially, less than ten years after Garcia, the Court again began to enforce substantive limits on congressional power in the name of state autonomy or state sovereignty.


1)      New York v. United States (1992)

In this case, the Court struck down a congressional act attempting to force states to pass legislation to deal with the disposal of low-level radioactive waste, or take title to all such waste within the state. Moreover, the central holding was that it is unconstitutional for Congress to compel state legislatures to adopt laws of state agencies to adopt regulations.


a)      Congress’s Choice of Means

In this opinion, Justice O’Connor noted that Congress has a choice of means in executing its regulatory programs:

·         It can pass a statute that enacts a particularly regulatory program; to the extent that state law conflicts, it is preempted by the Supremacy Clause, which makes duly enacted federal law supreme.

·         It may give states a choice of enacting its own regime according to federal guidelines or not act and be subject to the operation of federal law (so-called “cooperative federalism”).

·         It may use its spending power to condition the receipt of federal funds on compliance with congressional regulations.


b)      Statute in New York Followed None of These Means

The statute in this case did none of these things. Essentially, it said to state legislatures: “You must enact X piece of legislation, or suffer penalty Y.” The problem, wrote O’Connor, was one of constitutional structure and accountability.

·         First, the Constitution was created to empower the federal government to act on individuals, not states. This law did not regulate the conduct of anyone other than states (it was not a “generally applicable law”). Congress could not simply order the states to assume unknown liabilities or to legislate as it directs.

·         Second, the Court reasoned that a federal command to states to legislate in a certain fashion undermined political accountability. Essentially, if Congress could command the states on how to legislate, the state governments might take the brunt of unpopular legislation; as such, the guarantees that the political process would provide a remedy for unpopular legislation would no longer be viable, since the wrong government would be blamed.


c)      The Anti-Commandeering Principle

The major principle derived from this case is:

Congress may not commandeer state legislative processes.

Note that this principle merely confines the method of regulation open to Congress. Congress remains free to use its commerce power to regulate; it just may not require the states to do Congress’s work for its. As such, it is a procedural rule not a substantive one. It doe not confer any substantive zone of immunity from federal regulation on the states; however, it does protect the states from federal interference in the process of autonomous state governance.


2)      Printz v. United States (1997)

In this case the Court held that Congress violated the anti-commandeering principle when it required local law enforcement officials to administer background checks for prospective purchasers of handguns. Essentially, this holding reaffirmed New York, stating that Congress violates the Tenth Amendment when it conscripts state governments. Justice Scalia wrote the opinion for the court and offered three reasons why Congress did not have the power “to impress the state executive into service.” These reasons are as follows:


·         History

Our constitutional practice suggests an absence of such power


·         Structure

The federal government operates upon the people, not the states. Conscripting the states into the army of federal administrators would violate the states’ “residuary and inviolable sovereignty” and subvert Article II’s command that the President execute federal law.


·         Policy

The Brady Act’s derivative to local police chiefs and sheriffs distorted the political accountability of both federal and state officials and compromised the independence and autonomy that states retain “within their proper sphere of authority.” After this case, Congress can not force state executive officials to administrate federal laws. Congress can, of course, impose that task on the federal executive.




3)      The Anti-Commandeering Principle – What Does it All Mean?

Simply concluding that a particular piece of legislation might be within an enumerated power of Congress under Article I, §8 does not mean that it is constitutional. You must further see whether the legislation violates the anti-commandeering principle. That is, you need to apply the following test


a)      The Anti-Commandeering Test

(1)    Is Congress attempting to regulate for States, as opposed to passing a “generally applicable law”; and

(2)    In doing so, is Congress

(a)     forcing state legislatures to pass laws under instructions from Congress, or

(b)     conscripting state executive officials to implement or execute a federal program.


4)      What the Anti-Commandeering Principle Does Not Cover


a)      Conditional Spending

The Court made clear in Printz that Congress can condition the receipt of federal funds on compliance with congressional mandates, that is governed by the restrictions on Congress’s Spending Power. The rationale is that Congress is not forcing the states to do anything; rather, it is offering them a choice: forego the federal money or accept the money with strings attached.


b)      Preemption

Printz does not represent a repeal of the Supremacy Clause. Congress can instruct state officials to refrain from doing something so long as it is within its power to prohibit. This is not considered commandeering because the state officials were not being compelled to implement federal policy or legislate according to federal mandates.



IV.              Taxing and Spending Powers of Congress


A.     Sources of Authority for Federal Taxation

Article I, §8 provides that “Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises . . .” This power is independent of the other powers of Congress. In other words, Congress may tax things that it may not have power to regulate. Example: Congress may levy a tax on the possession of household pets. Absent some substantial connection to interstate commerce, Congress has no power to regulate the possession of household pets, but Congress has an independent power to tax.


B.     Implied Constitutional Limits on the Congressional Power to Tax

In addition to the specific constitutional limits on federal taxation, the Supreme Court has established some implied limits


1)      Disguised Regulation

Because taxes alter human behavior (people tend to change their actions in order to avoid taxes), any tax will have some regulatory effect. However, a regulatory effect is not necessarily forbidden. If Congress has the independent power to regulate, the regulatory effect of a tax is of no consequence.



a)      Example

If Congress imposes a tax on the interstate shipment of cigarettes, the  regulatory effect of the tax (deterring consumption of cigarettes) is of no constitutional significance. Congress has the independent power to regulate interstate commerce, and the interstate shipment of cigarettes is part of interstate commerce. But if the regulatory effect of a tax is one which Congress could not have accomplished using one of its limited and enumerated powers, the tax may be invalid. The validity of such a tax depends on whether it is truly a revenue-raising measure or whether it is a disguised regulation.


b)      The Child Labor Tax Case – Bailey v. Drexel Furniture Co. (1922)

In this case, the court declared unconstitutional a federal tax on companies that shipped in interstate commerce goods made by child labor. The Court explained that although some taxes have an “incidental” regulatory effect, a tax is unconstitutional when it loses is character as a tax and becomes a mere penalty with characteristics of regulation and punishment.


i          Problem

The problem with this case, as well as others of this time frame, is that it drew a false distinction between taxes that generate revenue and taxes that are penalties. Obviously, a tax can be both at the same time. Congress can use tax law simultaneously to regulate and generate funds. Therefore, deciding whether a tax should be characterized as regulatory or revenue generating is inherently arbitrary.


ii        The Decline of the “Disguised Regulation” Approach

This case is of little importance today. First, because the scope of the commerce power is so much broader now, there is less likelihood that any given tax will exert a regulatory effect that is outside of Congress’s independent power to regulate. Second, the Court has refined its criteria by which it distinguishes between legitimate taxes and disguised regulations – as such the distinction is no longer so arbitrary.


c)      United States v. Kahringer (1953)

This case stresses the cases prior to Bailey, in which the Court rejected arguments that mixed motives on Congress’s part were enough to condemn a particular tax, and arguments that a tax was invalid if it was not primarily intended to raise revenue. Analysis: A federal excise tax does not cease to be valid merely because it discourages or deters the activities taxed. Nor is the tax invalid because the revenue obtained is negligible. The instant tax has a regulatory effect. But the wagering tax produces revenue . . . The power of Congress to tax is extensive and sometimes falls with crushing effect on businesses deemed unessential or inimical to the public welfare. [HOWEVER], the remedy is with the Congress, not the courts.


·         Note: the Court now seems to adopt the view that Alexander Hamilton had endorsed as the “correct one.” Thus, Congress has the broad power to tax and spend for the general welfare so long as it does not violate other constitutional provisions.


a)      Modern Criteria: Tax or Regulation

The Supreme Court today has developed a number of criteria to determine whether a “tax” is really a tax, or instead, a disguised regulation.


i          No Motive Inquiry

The Court says that it will not inquire “into the hidden motives which may move Congress” to tax. Thus, Congress may tax for purely regulatory objectives, so long as the form of the “regulation” is a tax.


ii        Productive of Revenue

If a tax produces some revenue, it is likely to be treated as a legitimate tax. Thus, the Court has upheld taxes upon firearms dealers, gambling, and marijuana, even though the revenue raised from these taxes was relatively small.


iii      “Regulatory” Tax Rates Permitted

Taxes that regulate by means of their rate structure are permissible as valid taxes.


iv      Regulations “Reasonably Related” to Tax Enforcement

Congress may impose regulations as part of a tax so long as those regulations are reasonably related to enforcement of the tax. For example, in Kahringer, Congress levied a tax on bookies that required them to file a tax return, including their name and address. Although the registration requirement was no doubt intended to facilitate criminal prosecution of illegal gambling, the Court upheld the registration requirement on the ground that it was adapted to collection of a valid tax.


C.     Congress’s Spending Power

The other side of taxation is spending, but the power to tax is not the source of the power to spend. The principal issue regarding the spending power is the scope of congressional power to attach conditions to the receipt of federal expenditures, particularly when those conditions oblige the states to alter their constitutions or laws.


1)      Source of Authority to Spend

Article I, §8 gives the power “to pay the Debts and provide for the common Defence and general Welfare of the United States.” EXAM TIP: Congress does not have the power to regulate for the general welfare – it has the power to spend for the general welfare.


D.     Two Important Issues Concerning the Spending Authority

Two issues are important: first, what is the general welfare for which Congress may spend? Second, may Congress attach conditions to the receipt of federal funds and, if so, are there any limits to such conditions?



1)      United States v. Butler (1936)

Through the Agricultural Adjustment Act (“AAA”) Congress sought to raise farm prices by limiting production. A tax was levied on the first processor of each farm commodity and those tax revenues were used to pay farmers who entered into contracts to limit production of farm commodities. Butler, on behalf of a cotton processor, attacked the validity of the processing tax. The Court struck it down as part of a spending program that was beyond Congress’s power to spend.


a)      Meaning of General Welfare

In Butler, the Court decided that the phrase “general welfare” did not limit Congress’s spending power to spending that was necessary and proper to effectuate some other enumerated power of the federal government. Essentially, they followed Alex Hamilton’s view that Congress could spend for any purpose necessary or proper to the general welfare, regardless of whether it was in aid of some other enumerated federal power.


b)      Court’s Rationale

But, said the Court, Congress had not simply spent for the general welfare; it had regulated for the general welfare – THIS IS A BIG FUCK UP. – While Congress may spend for the general welfare, it may not regulate for the general welfare.


c)      Application

The Court concluded that Congress could not validly regulate agricultural production, a local and “pre-commercial” activity. The Court concluded that Congress had indeed regulated because the AAA coerced farmers into compliance with the acreage reduction scheme. Farmers who didn’t enter into contracts to limit production suffered sever economic loss; Congress could not “purchase” compliance with a regulatory scheme that it could not otherwise constitutionally erect.


d)      Stone’s Dissent

Justice Stone dissented, arguing that it was oxymoronic “to say that there is a power to spend for the national welfare, while rejecting any power to impose conditions reasonably adapted to the attainment of the end which alone would justify the expenditure.” His dissent seems to concede that conditional spending is inherently regulatory and asserts that regulation ancillary to spending is valid so long as it is reasonably related either to the general welfare of the nation, or perhaps, to the specific spending initiative.


2)      Steward Machine Co. v. Davis (1937)

The Court upheld a provision of the Social Security Act that granted a credit against federal payroll taxes for payments made by employers to state unemployment compensation schemes, so long as those state plans complied with minimum federal requirements. The Court concluded that the credits were not “weapons of coercion” and was merely a condition imposed on a federal expenditure that did not coerce the states because the states remained free to decide whether they wised to enact an unemployment compensation scheme complying with the federal standards. This case marked a beginning of the erosion of Butler and the movement towards allowing for conditional spending


3)      Conditional Spending: South Dakota v. Dole (1987)

By statute, Congress directed the Secretary of Transportation to withhold 5% of the federal highway funds otherwise due under other federal laws from any state that permitted persons under age twenty-one to purchase and possess alcoholic beverages. SD permitted nineteen-year-olds to purchase 3.2% beer, and they sought a declaration stating that this law was beyond Congress’s spending power.


a)      Holding

The Court upheld the law. In doing so it outlined the constitutional limits upon the practice of conditioning state receipt of federal funds on compliance with federally specified standards. For conditional spending to be valid, it must comply with the following criteria:


·         Conditions on spending must be in pursuit of the general welfare, but the courts will “defer substantially to the judgment of Congress” as to what is in aid of the general welfare of the nation.


·         Conditions on spending must be unambiguous, to enable the states to exercise a knowing choice.


·         Conditions on spending must be related to the “federal interest in particular national projects or programs,” a requirement that means that the condition must reasonably further some particular national project or program otherwise within federal power. Congress has no power to use conditions upon receipt of federal funds to purchase state compliance with something far removed from the subject of the spending. This requirement imposes a rule of “reasonable proximity” between the means (the condition) and the end (the particular federal project or program).


Example: Suppose Congress limits receipt of federal funds for highway construction to those states that prohibit marriage under the age of eighteen. It is unlikely that this condition – a minimum age for marriage – reasonably furthers the particular federal interest – safe highway construction.


·         Conditions on spending must not violate “other constitutional provisions” that “provide an independent bar to the conditional grant of funds.” This requirement simply means that Congress may not condition receipt of federal funds on a state’s violation of the Constitution.


Example: Suppose Congress offers money to states for public health purposes, but withholds receipt of federal funds from those states that permit abortions. The condition is invalid because it obligates states to violate an independent constitutional provision – the substantive due process right of a woman to terminate her pregnancy.


·         Conditions on spending must not be coercive. When pressure turns into compulsion, a condition becomes coercive. In Dole, the Court found that the condition was “relatively mild encouragement to the States to enact a higher drinking age.” However, the Court gave no hint as to the point where the withholding of federal funds might become coercive. Dole leaves an opportunity for states to argue that conditions imposing more severe cutbacks are coercive, but Dole offers no guidance as to the point where coercion begins.


4)      Notes from Class on Test for Conditional Spending (Same as Above)

Test for Modern Spending Programs:

South Dakota v. Dole Factors:

(1)    Spending power must be in pursuit of the general welfare – how do we interpret the phrase general welfare – we don’t; it is left entirely up to Congress.

(2)    Conditioning of funds on compliance with federal requirements (what Congress tells the states they can use the money for) must be “unambiguous.” – have to tell the states what you are doing

(3)    Conditions (what you are asking the states to abide by) have to be related to the federal interest in the program

(4)    Can’t violate other constitutional provisions

(5)    Can not coerce compliance



V.                 The Dormant Commerce Clause Doctrine


A.     Overview

The commerce clause has two distinct functions. As discussed above, one is an authorization for congressional actions. The other function of the commerce clause is in limiting state and local regulation. This is the “dormant” or “negative” commerce clause.


1)      Definition

The dormant commerce clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. There is no constitutional provision that expressly declares that states may not burden interstate commerce. Rather, the Supreme Court has inferred this from the grant of power to Congress in Article I, §8, to regulate commerce among the states.

-          Even if Congress has not acted under its commerce powers and no preemption is found, the state or local law can be challenged on the ground that it excessively burdens commerce among the states. In other words, even if Congress has not acted – even if its commerce power lies dormant – state and local laws can still be challenged as unduly impeding interstate commerce.


B.     Justifications for the DCCD

Congress always has the authority under its commerce clause power to preempt state or local regulation of commerce. As such, Congress could invalidate any state or local law that it deems to place an undue burden on interstate commerce. So, the real issue with regard to the DCCD is whether the judiciary, in absence of congressional action, should invalidate state and local laws because they place an undue burden on interstate commerce. There are three primary justification for why the judiciary should have this power:


1)      Historical

The historical argument reasons that the framers intended to prevent state laws that interfered with interstate commerce. A key impetus for the Constitutional Convention was the absence of any federal commerce power under the Articles of Confederation. Commerce among the states was obstructed by protectionist state legislation, so supporters of the DCCD indicate that historically the doctrine was a primary impetus behind the Constitution.


2)      Economic

The economy is better off if state and local laws impeding interstate commerce are invalidated.


3)      Political

States and their citizens should not be harmed by laws in other states where they lack political representation. McCulloch v. Maryland is an example of this, in that Maryland attempted to tax a federal institution which would effectively tax people outside the state who had no representation. Essentially, the political process cannot be trusted when a state is advantaging itself at the expense of out-of-staters who have no representation.


C.     Arguments Against the DCCD

The argument against the DCCD is, in part, textual. The drafters of the Constitution could have included a provision prohibiting states from interfering with interstate commerce, but no provision exists. In recent years, Justices Thomas and Scalia have urged for the abandonment of the DCCD stating that it is “an exercise of judicial power in an area where there is no textual basis.” Moreover, opponents of the DCCD propound a separation of powers argument as well. This argument reasons that the task of reviewing state laws should be done by Congress and not by the courts. However, defender rebut this argument, pointing out that it is unrealistic to expect Congress to review the vast array of state and local laws that might be challenged as burdening interstate commerce.


D.     Doctrinal History

This doctrine also arose out of Gibbons:


1)      Gibbons v. Ogden

In Gibbons, Justice Marshall also considered whether the commerce clause could act as an independent limit on state power, even where Congress has not acted. Marshall stated that “when a state proceeds to regulate commerce . . . [it] is doing the very thing which Congress is authorized to do.” This argument would seem to imply that Congress’s commerce power is exclusive, that any state regulation of commerce is inconsistent with federal power. However, Marshall did not go nearly as far in limiting state authority. Rather, Marshall drew a distinction between a state’s exercise of its police power and a state exercising the federal power over commerce.




a)      Problem

The cases that immediately followed used this approach, but it quickly became clear that Marshall’s approach was problematic, in that it assumes two distinct categories – (1) state laws adopted under the police power and (2) state laws that regulate commerce among the states – that are not at all separate. Obviously, state laws adopted under the police power can place an enormous burden on interstate commerce, such as when a state offers a health or safety justification for discriminating against out-of-staters. Therefore, the issue, unresolved in Gibbons, is when state laws, including those adopted under the police power, violate the dormant commerce clause because they unduly burden interstate commerce.


2)      Cooley v. Board of Warrens: National v. Local Subject Matter

This case set forth a new test; the Court drew a distinction between subject matter that is national, in which event state laws are invalidated under the DCCD, and subject matter that is local, in which event state laws are allowed.


a)      Problems With This Test

There are, however, several problems with the Cooley test:

·         First, it allows state regulations, no matter how protectionist or how much they interfere with interstate commerce, so long as the subject matter is deemed local.

·         Second, there is no clear distinction between what is considered national subject matter and what is considered local subject matter. Cooley articulates no criteria for making this determination and it seems inherently arbitrary; in almost any area there likely are some benefits from national uniformity and some gains from local diversity.


3)      DiSanto v. Pennsylvannia: Direct v. Indirect Effects on Commerce

In this case, the Court propounded a test that drew a distinction between state laws that directly interfered with interstate commerce, and thus were invalid, as opposed to those that only had an indirect effect and were permissible.


a)      Problem

The problem, of course, with a “direct/indirect” test is that it falsely assumes that there is a clear, in kind, difference between laws that directly burden commerce and those with only an indirect effect. The reality is that burdens are a matter of degree, and the determination of whether something is direct or indirect is simply a choice about where to draw the line. As Justice Stone state in his dissent in DiSanto, the test is “too mechanical, too uncertain in its application, and too remote from actualities to be of value.”


4)      The Modern Doctrine: A Balancing Approach

The early test all attempted to set rigid categories to determine whether state could regulate (i.e., direct/indirect or national/local). The modern approach is more based on the balancing of benefits of a law against the burdens that it imposes on interstate commerce. It should be noted, however, that the Court has not expressly overruled any of the earlier tests and sometimes invokes them in explaining a particular result. Nonetheless, in essence, the crucial issue of the modern approach is whether the benefits of a state law outweigh its burden on interstate commerce.


5)      Balancing Test Depends on Whether There is Discrimination

A primary factor in the Court’s balancing depends on whether the state or local law discriminates against out-of-staters or treats in-staters and out-of-staters alike. There are two presumptions: (1) if the Court concludes that a state is discriminating against out-of-staters, then there is a strong presumption against the law and it will be upheld only if necessary to achieve an important purpose; (2) in contrast, if the Court concludes that the law is nondiscriminatory, then the presumption is in favor of upholding the law and it will be invalidated only if it is shown that the law’s burdens on interstate commerce outweigh its benefits.


E.     The Discrimination Doctrine

There are several ways by which the Court finds sufficient discrimination against interstate commerce presumptively to void state laws and one test by which a state may justify such discrimination.


1)      Facial Discrimination

When a state law discriminates on its face against interstate commerce it is INVALID unless the state proves that it has a legitimate objective that cannot be accomplished by any less discriminatory alternative.


a)      Philadelphia v. New Jersey

Philadelphia v. New Jersey has become the leading expression of the Court's "antidiscrimination principle": state laws that draw explicit distinctions between in-state and out-of-state commerce, and which treat that out-of-state commerce differently ("discriminate" against it) are subject to a virtually per se rule of invalidity.  The burden of proof is then on the State to prove (i) legitimate purpose and (ii) lack of less discriminatory means to effectuate that purpose. The Court held that the actual purpose of New Jersey's law excluding out-of-state waste (i.e., its "end") was irrelevant, because the means used by New Jersey (erecting a barrier excluding out-of-state products) was also impermissible.  In other words, assuming that New Jersey was merely trying to conserve its landfill space (as opposed to enriching in-state economic actors at the expense of out-of-state actors), it could not do so by, in the Court's words, "isolating the State from the national economy" and attempting to "saddle those outside the State with the entire burden of slowing the flow of refuse into New Jersey's remaining landfill sites."  Thus, while New Jersey's law might not be "protectionist" in the sense of protecting an industry from out-of-state competition, it was inconsistent with the vision of the Framers who wished to demolish the barriers states had erected against one another's commerce and thus to avoid the political friction that often accompanied those barriers.


2)      Economic Protectionism

The Court always sees discrimination against interstate commerce in a state law that is economically protectionist. Laws that are openly and purposefully protectionist are automatically void. But laws that are protectionist in their effect and have no apparent purpose apart from local economic protection are equally infirm.



3)      Discriminatory Application of Neutral Laws

A state may enact a law that is perfectly neutral toward interstate commerce but if the law, as applied, discriminates against interstate commerce, it will be void unless the state proves that it has a legitimate objective that cannot be accomplished by any less discriminatory alternative.


a)      H.P. Hood & Sons v. Du Mond (1949)

NY required all milk processors to obtain a license but conditioned the license upon proof of a need for the processing in a market not adequately served. Hood, a Boston processor was denied a license. Thus, although NY’s licensing requirement and criteria for issuance were neutral, the Court concluded that NY’s refusal was the product of sheer economic protectionism and applied a per se rule of invalidity.


4)      Summation: Test if Discrimination is Found – “Strict Scrutiny”

If the law if found to be discriminatory, either on its face, because of economic protectionism or in its application, then the law or regulation is subject to a per se rule of invalidity. However, if the State can prove:


(i)                  a legitimate purpose, and

(ii)                that there are no less discriminatory means,


THEN the law will be deemed to be valid.

The test is commonly known as the “strict scrutiny” test.


F.      Balancing Burdens and Benefits – Laws that Do Not Discriminate

Laws that do not discriminate are generally upheld and will be struck down only if found to place a burden on interstate commerce that outweighs the benefits from the law. Simply stated, a law that does not discriminate is void only if a challenger to the law can show that the burdens placed on interstate commerce by the law are clearly excessive in relation to the putative local benefits of the law.


1)      How the Test Works

This test requires the court to balance the benefits to the state against the burdens on interstate commerce. The Court will uphold the law unless the burdens, however measured, heavily outweigh the state benefits, however measured. The burdens must be CLEARLY EXCESSIVE compared to the benefits, meaning that the law will generally be held to be valid.


a)      Problem with this Test

Comparing benefits to the state with burdens on interstate commerce is like comparing apples and oranges; these two issues are incommensurable. The Court does not merely assess the quantity of benefits versus burdens, but it also compares the quality.


b)      So. Pac. Co. v. Arizona (1945)

AZ limited RR train lengths within the state. SoPac challenged the validity of the statute and showed that the law forced it to break up and remake trains on either side of AZ, which imposed greater labor costs and added fuel expenses. Though the law was intended to enhance safety in AZ, SoPac proved that the law in fact increased accidents due to a greater number of trains rolling through the state. Thus, when balancing the burdens against the benefits, the burdens appeared clearly excessive when compared to benefits because benefits really were non-existent.


2)      Assessing Burdens

How do you quantify “burdens on interstate commerce”?

Burdens include:

a)      Cost to interstate commercial actor

b)      Cost of “externalities”

c)      Cost of allowing states to set national standards OR cost of subjecting interstate commerce to conflicting state standards


§         Burdens are not assessed in isolation. The burden of a law may depend, in part, on the laws of other states. - “Extraterritorial Effects” – for instance, no other state had the train length requirement that AZ had. The states doing the regulating in the cases we read were out-lyers – they were enacting statutes that other state were not. They were anomalous statutes which were creating problems for your neighbor states (“externalities”)


§         Burdens are measures in terms of the law’s effect on interstate commerce. Those effects are often economic and quantifiable, but non-economic effects count as well. -  The options for out-of-state trucking companies are to either go around or change their set-ups. As such, some trucking companies will find the strictest state and set up according to that state – therefore, that state will have created a national standard. The Court feels that there are some instances where the state will pass non-discriminatory laws, but this law is best handled by Congress.


3)      Assessing Benefits

§         The benefits of public policy are always hard to measure but the Court tries to do so in terms of how much the law actually accomplishes its purposes – for instance, in the SoPac/AZ case, the law did not actually produce the purported benefits because the shorter trains caused more frequency and more accidents. As such, the law failed to accomplish its benefits and was void.

§         Like burdens, benefits are not measured in isolation. If other laws of the state undermine the benefits, then the weight of the benefits is greatly reduced.

§         If the law provides benefits that are already provided by other laws, then the benefits are marginal.

§         Must determine whether the purported benefits are illusory or real:

o        “Fit” between End and Means – does the safety measure actually accomplish what it is trying to. – this exemplifies the need to get all of your evidence and your findings of fact right in the lower court.



G.     Facially Neutral Laws with Discriminatory Effects or Purposes

States sometimes enact laws that are facially non-discriminatory but that either (1) have a discriminatory effect on interstate commerce, or (2) are motivated by a hidden discriminatory purpose. The Court treats these cases as hybrids, partaking of both the discrimination doctrine and the burden doctrine.


1)      The Hybrid Test of Hunt v. Washington State Apple Ad. Comm. (1977)

Facts: WA had its own grading system, which was recognized as being superior to even the USDA. NC had no system. NC passed an ordinance stating that you could only ship in apples to NC bearing a USDA grade or none at all. As such, the cost of compliance to WA apples went up. NC apple growers would suffer no costs because of this.

Analysis: The discriminatory effects against the WA apple people was significant and there was some evidence that the law was intended to protect NC’s apple producers. That combo of distinct discriminatory effects and hint of forbidden purpose caused the Court to employ a hybrid standard. “When discrimination against [interstate] commerce of the type we have found is demonstrated, the burden falls on the State to justify it BOTH in terms of the local benefits flowing from the statute and the unavailability of non-discriminatory alternatives adequate to preserve the local interests at stake.”

Note that normally, under the burden doctrine, the challenger would have had to prove that the burdens were clearly excessive compared to the benefits. However, in this case, the Court shifted the burden to the state to prove both local benefits and non-discriminatory alternatives. Thus, this test is even stricter, as evidenced by the fact that the NC law was struck down.


2)      Discrimination Doctrine Alone Applied

Some combination of discriminatory effects and possible protectionist purpose may trigger application of the discrimination doctrine alone, as in Dean Milk.


a)      Dean Milk Co. v. Madison (1951)

Madison, WI barred the sale of milk unless pasteurized within a 5-mile radius. The Court found that the discriminatory effect of this law profound, since it completely barred milk from out of state. Madison’s legislative objective – public health – could readily have been achieved by reliance on federal inspection procedures (a less discriminatory alternative). Therefore, the Court applied the “strict scrutiny” test to strike down the law, because the effects of the law were discriminatory.


3)      Illegitimate Objective: Economic Protectionism

The presence of either or both discriminatory effects and discriminatory motives may establish, in some cases, an illegitimate objective – economic protectionism – on the part of the state.


a)      West Lynn Creamery v. Healy (1994)

Mass. enacted a tax on all milk sold in the state. The tax revenues were used to pay subsidies to dairy farmers in the state. Although the tax was non-discriminatory – it applied to all milk sold in the state, regardless of origin – the subsidy program amounted to a rebate that favored the in-state group of dairy farmers. Thus, the “purpose and effect” of the program was to divert market share to Mass. dairy farmers, enabling higher cost Mass. dairy farmers to compete with lower cost dairy farmers from other states. As such, the tax was effectively imposed on only out-of-staters, and is therefore economically protectionist. It was struck down as such.


4)      Burden Doctrine Only Applied

Sometimes the Court finds the discriminatory effects insufficient to trigger anything but the burden doctrine’s balancing test.


a)      Exxon Corp. v. Md. (1978)

Md. barred refiners of gas from the retail sale of gas. All refiners of gas are located outside Md. The Court found no discriminatory effect because the law did not on its face restrict the movement of gas across state lines. The Court found no protectionist purpose despite evidence that one legislative motivation was to protect local independent retailers of gas. The Court thus applied balancing and sustained the law.

Note: This case is a prime example of when a court finds a law is not discriminatory, it generally upholds the law.


b)      Notes on Exxon

The distinguishing factor is that the producer refined gas stations, according to the courts, is not actually in competition with the independent gas stations. No in-state producer-refiner is benefiting from the regulation, so it is not discriminating against out-of-staters. Exxon requires discrimination among similarly-situated competitors. Problem: you can find minute distinctions between competitors.


5)      How do We Follow this Inconsistent Law

The Court will generally apply the balancing doctrine if a law does not appear to be discriminatory. If, in the course of its balancing, the Court finds significant discriminatory effects or hidden discriminatory purposes, it will probably invalidate the law because the burdens on commerce clearly outweigh the local benefits. FURTHER, certain discriminatory effects or motive might “trigger” the employment of the PIKE balancing test as well, including:

a)      Embargo against interstate commerce (can’t sell out of state goods).

b)      Raise costs for out-of-state producers that are no borne by in-state competitors.

c)      Non-discriminatory tax that in effect out of state producers paid

d)      Strips competitive advantage

e)      “Invidiously” level the playing field to the advantage of in-state commerce

















6)      Denning’s Flow Chart

·         State or local law discriminatory?

a.       On its Face

b.       In its Effects

c.       In its Purpose




·         PIKE Balancing

a.       Do burdens on interstate commerce “clearly exceed” putative local benefits – if no, then valid




·         “Strict Scrutiny”

a.       Legitimate interests                                     - if yes, then valid

b.       No less discriminatory means           - if no, then invalid



H.    The Market-Participation Doctrine

This doctrine provides that a state may favor its own citizens in dealing with government-owned businesses and in receiving benefits from government programs. In other words, if the state is literally a participant in the market, such as with a state-owned business, and not a regulator, the DCCD does not apply. Discrimination against out-of-staters is allowed that would normally otherwise be impermissible.


1)      Cases Setting Out the Market-Participant Doctrine


a)      Hughes v. Alexandria Scrap Co. (1976)

In this case, the court upheld a Md. law designed to rid the state of abandoned automobiles by having the state pay for inoperable cars. Basically, in-staters only had to show minimal documentation but out-of-staters had to produce extensive documentation. The Court held that the state was a market participant by purchasing the cars and that therefore its discriminatory actions against out-of-staters did not violate the DCCD, declaring “[n]othing in the purposes animating the Commerce Clause forbids a state, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.”


b)      Reeves, Inc. v. Stake (1980)

In this case, the Court upheld a cement company owned by SD charging less to in-state purchasers and more to out-of-state purchasers. The Court said the “basic distinction . . . between States as market participants and States as market regulators makes good sense and sound law.” Basically, SD, as a market participant, could favor certain customers (in-state purchasers) in the same manner that private enterprises can favor certain customers.


c)      White v. Mass. Council of Constr. Employers (1983)

This case pointed out that the market-participant exception is not limited to state-owned businesses – states may also favor their citizens in receiving benefits from government programs. In this case, the Court upheld a city ordinance that required that all construction projects financed by the city use a workforce comprised of at least 50 percent residents of the city. Essentially, the court said that the city could favor its residents over out-of-staters in employment for government funded construction projects because in those projects the state was a “market participant.”


2)      Limitation on the Market-Participant Doctrine

There is one important limitation on the scope of this exception: State businesses may favor in-state purchasers, but they may not attach conditions to a sale that discriminate against interstate commerce. In other words, the State cannot attach any “downstream” limits on what happens to the goods it places in commerce, thus having a substantial regulatory effect outside of the particular market.


a)      South-Central Timber Development, Inc. v. Wunnicke (1984)(Plurality)

In this case, the Court declared unconstitutional an Alaskan law that required that purchasers of state-owned timber have the timber processed in AK before it is shipped out of the state. The Court said that “[t]he limit of the market-participant doctrine must be that it allows a State to impose burdens on commerce within the market in which it is a participant, but allows it to go no further. The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside that particular market.” Thus, the Court drew a distinction between the ability of a state to prefer its own citizens in the “initial disposition of goods when it is a market participant” and a “State’s attachment of restrictions on dispositions subsequent to the goods coming to rest in private hands.”



VI.              The Privileges and Immunities Clause of Article IV, §2


A.     Introduction

Article IV, §2, states: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The SC has interpreted this provision as limiting the ability of a state to discriminate against out-of-staters with regard to fundamental rights or important economic activities.


B.     Application of the Privileges and Immunities Clause

If a state law:

(1)    Discriminates against non-residents

(2)    Re: Exercise by non-residents of “fundamental right”, e.g., pursuing a common calling (working a particular job)




(1)    “Substantial Reason” must exist for the differential treatment (Must have a good reason) (Reason must be other than geography)

(2)    Distinction must bear “substantial relation” to state’s objective (Ends must be justified by the means)(Court always considers the availability of a less restrictive means)




C.     “Fundamental Rights” Meaning Important Econ. Activities & Const. Rights

The majority of cases under the privileges and immunities clause involve states discriminating against out-of-staters with regard to their ability to earn their livelihood. Generally, the Court has found a violation of the privileges and immunities clause if a state excludes out-of-staters from practicing a trade or profession, or charges a discriminatory licensing fee, or mandates that a preference be given to in-staters for employment. All of these examples make it clear that the privileges and immunities clause limits the ability of a state or local government to discriminate against out-of-staters with regard to their ability to earn a livelihood. However, if there is neither such economic discrimination nor discrimination with regard to constitutional rights, then there is not a violation of the privileges and immunities clause.


D.     Key Differences with the DCCD and the P&I Clause

The DCCD and the P&I Clause overlap: Both can be used to challenge state and local laws that discriminate against out-of-staters. There are, however, some key differences:


1)      P&I Clause Requires Facial Discrimination Against Out-of-Staters

The P&I Clause can be used only if there is discrimination against out-of-staters. The DCCD can be used to challenge state or local laws that burden interstate commerce regardless of whether they discriminate against out-of-staters.


2)      P&I Clause Expressly Limited to “Citizens”

Corporations and aliens can sue under the DCCD, but not the privileges and immunities clause. The privileges and immunities clause is expressly limited to “citizens,” whereas no limitation exists with regard to the DCCD.


3)      No “Re-Delegation”

If Congress approves state laws, then they do not violate the DCCD; if Congress has acted, its commerce power no longer is dormant. Essentially, this means that if the Court strikes down a regulation under as a violation of the DCCD and then Congress uses its active commerce power to make such regulation valid, the regulation become valid. This is re-delegation. Concerning the P&I Clause, there is no re-delegation; congressional approval does not excuse a law that violates the P&I Clause.


4)      No Market-Participant Exception to P&I Clause

There is a market-participant exception to the DCCD, allowing states to favor their own citizens in receiving benefits from government programs and in dealing with government-owned businesses. No such exception exists for the P&I Clause.










§4: Separation of Powers


I.                   Express and Inherent Presidential Powers


A.     Is There Inherent Presidential Power?

Article II begins, “The executive Power shall be vested in a President of the United States of America.” Article II then enumerates specific powers of the President. Through constitutional history, a debate has emerged over whether this language was intended to grant the president inherent powers not expressly enumerated in Article II. A century and a half of partisan debate and scholarly speculation yields no net result. The arguments on both sides largely cancel each other out. Nonetheless, there is some directional advice given in the case law, although it is also somewhat muddy.


B.     Youngstown Sheet & Tube Co. v. Sawyer (U.S. 1952)

Youngstown is the leading case addressing the scope of inherent presidential power – the ability of the president to act without express constitutional or statutory authority. In this case, President Truman issued an executive order directing the secretary of commerce to take possession of steel mills and keep them running when the union announced plans to strike. His rationale was that this power was granted by his need to keep the mills functioning since the country was participating in the Korean War at the time. The secretary of commerce issued the order and the president reported the action to Congress, who took no action in response to the seizure. The Supreme Court, by a 6 to 3 margin, declared the seizure unconstitutional. Seven different opinions were written. Four different approaches can be identified in the opinions:


1)      Approach 1: No Inherent Presidential Power

There is no inherent presidential power; the president may act only if there is express constitutional or statutory authority.

Justice Black’s opinion denied the existence of any inherent presidential power: The president may only act pursuant to express or clearly implied statutory or constitutional authority. This approached is premised on the belief that inherent authority is inconsistent with a written Constitution establishing a government of limited powers.


2)      Approach 2: Inherent Power Unless Interfering W/Other Branches

The president has inherent authority unless the president interferes with the functioning of another branch of government or usurps the powers of another branch.

This approach allows the president to act without express statutory or constitutional authority, so long as the president is not usurping the powers of another branch of government or keeping another branch from performing its duties. This approach is premised on the belief that there is a need for the president to exercise powers not specifically enumerated in the Constitution or not expressly granted by Congress. For instance, the Constitution makes no mention of a presidential power to recognize foreign government or to remove presidential appointees from office, nor has Congress ever granted such powers in a statute. Yet, it is conceded that the president has these powers.





3)      Legislative Accountability

The president may exercise powers not mentioned in the Constitution so long as the president does not violate a statute or the Constitution.

This third approach is that the president may take any action not prohibited by the Constitution or a statute. Several of the opinions in Youngstown took this approach the most notable being Justice Jackson’s.


a)      Justice Jackson’s Concurrence

This is probably the most famous opinion dealing with presidential power because he delineated three zones of presidential authority:


§         Zone 1: President Acts Pursuant to Express Congressional Approval

In this zone, the president’s authority is at its maximum. Under such circumstances, the president’s acts are presumptively valid; they are invalid only if the federal government as a whole lacks power.


§         Zone 2: President Acts When Congress is Silent

“When the president acts in absence of either a congressional grant or denial of authority, he 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 which its distribution is uncertain.” (In other words, the powers of Congress and the President might overlap.) In this arena, it is impossible to formulate general rules as to the constitutionality of the actions in this area; rather, constitutionality is likely “to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” In BPD’s words, though, congressional silence may invite executive action.


§         Zone 3: President Acts Against Express or Implied Will of Congress

“When the President takes measures incompatible with the express or implied will of Congress, his power is at its LOWEST EBB.” Because the president is disobeying a federal law, such presidential actions will be allowed only if the law enacted by Congress is unconstitutional.


It should be noted that Zones 1 and 3 involve situations where Congress has acted, and thus the issue is the constitutionality of the federal law. Only the second approach concerns inherent powers, but Jackson offered no criteria to guide the courts dealing with these issues. Does this mean that when Congress is silent, everything is up in the air? Court must use its best judgment? [See §4, II, C, infra.]


4)      Approach 4: Broad Inherent Authority

The president has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated.

In other words, in this fourth area, federal laws restricting the president’s powers are unconstitutional.


C.     Importance of Which Approach is Chosen

All four of the approaches have some support in Youngstown and some support in other cases. No Supreme Court case definitively makes one of these approaches correct and the others wrong. Ultimately, the choice of approach must be based on a decision about the appropriate scope of presidential power and how best to check the president


1)      Example

Consider the issue of impoundment. During the early 1970’s, Tricky Dick claimed that he had the power to impound funds appropriated by Congress and refuse to spend them.

§         First Approach – impoundment is unconstitutional because there is no constitutional or statutory authority to support the practice.

§         Second Approach – impoundment also is likely to be unconstitutional because it usurps Congress’s power of the purse.

§         Third Approach – impoundment was likely constitutional until Congress adopted the Impoundment Control Act, which effectively forbids the practice

§         Fourth Approach – if impoundment is regarded as an inherent power of the president, then it is constitutional and the Impoundment Control Act is an impermissible restriction.


This example makes it clear that the choice of approach is crucial in determining the analysis and the likely outcome. In most cases, however, the approach used is implicit rather than expressly defended.


D.     Formalists and Functionalists

These are the two basic philosophies on how to view inherent executive authority:

§         Formalists – treats separation of powers as hard and fast rules to be adhered to regardless of the consequences.

§         Functionalists – this philosophy takes an approach which tries to apply powers in order to avoid a concentration of power in one branch – thus, functionalists may grant inherent executive authority so long as it does not concentrate too much power in the executive. As long as a branch’s individual rights aren’t affected and there is no concentration of power in one branch, then the functionalists would state that it was all right.



II.                Foreign Policy


A.     The Basic Question

A basic question, for which there is no definitive answer, is whether the president inherently has greater powers in the area of foreign policy compared with domestic affairs.


B.     United States v. Curtiss-Wright Corp. (1936)

Because of a concern that United States’ munitions manufacturers were arming both sides of a war in S.A., Congress adopted a law that empowered the president to issue a proclamation making illegal further sales of arms to the warring nations. This case arose at the time when the Court was invalidating laws pertaining to domestic affairs as impermissible delegations of legislative power to the executive (“non-delegation” doctrine).


1)      Holding

In this case, however, the Court upheld the delegation to the president of quasi-legislative power in the foreign affairs field, in order to stop munitions shipments. Moreover, the Court spoke generally of a fundamental difference between domestic and foreign policy. Justice Sutherland, writing for the Court, declared that “[t]he two classes of power are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect those enumerated powers, is categorically true only in respect to our internal affairs.” It should be noted that the holding of this case is of limited importance because the “non-delegation” doctrine, barring Congress from delegating its legislative power to others, has since become flaccid.


a)      Basis for Holding

Sutherland had three primary rationales for why domestic and foreign policy differ:

§         First, authority over domestic affairs was possessed by the states before the ratification of the Constitution. By ratification, the states bestowed this power on the national government. As to foreign policy, however, the power is inherently in the nat’l gov’t by virtue of it being sovereign. In other words, an exclusively federal power over foreign affairs was implied in the Constitution.

§         Second, “in this vast external realm . . . the President alone has the power to speak or listen as a representative of the nation.” This power does not require as a basis for its exercise and act of Congress.

§         Congress had “vested in the President” all of its authority on this issue “by an exertion of legislative power.”


2)      Basis for Broad Inherent Presidential Power in Area of Foreign Policy

This case is still cited by the Supreme Court as authority for broad inherent presidential power in the area of foreign policy; according to Denning, this is generally all we need to know about this case. That it is here and that it provides a basis for broad inherent presidential power in the area of foreign policy. – Although Sutherland’s description of the breadth of the President’s foreign affairs power is in dicta, this opinion is nonetheless influential. Everyone agrees that there is in fact an unenumerated foreign relations power; disagreement centers on the degree to which it is shared by the President and Congress.


C.     Back to Youngstown – What Is Congressional Authorization or Prohibition

Given the President’s power depends in part on whether Congress has authorized or prohibited his actions, it is important to understand what sort of congressional actions constitute authorization or prohibition. When Congress has enacted legislation that specifically authorizes or prohibits presidential action, the case is easy. Implied congressional authorization is more problematic, partly because it is harder to know what meaning, if any, to attach to congressional inaction or silence. This is basically the area that is covered in Zone 2 of Jackson’s Youngstown opinion. There are three basic areas congressional inaction or silence:


1)      Rejection of Legislation

The Court sometimes finds implicit congressional prohibition of presidential action in congressional rejection of legislation.



2)      Congressional Acquiescence

Sometimes the Court finds implicit authorization of presidential action from congressional acquiescence to the practice. This occurs commonly in the field of foreign affairs.


3)      Inferences From Legislation: Dames & Moore v. Regan

Another kind of congressional silence is that which fills the gaps between existing legislation. In D&M v. Regan, the Court found implicit congressional approval in those gaps.


a)      Facts

Following the Iranian revolution, D&M, an American engineering firm, sued Iran in U.S. district court to recover damages for breach of contract and attached Iranian assets in the U.S. Presidents Carter and Reagan then obtained the release of American hostages in Iran and, in exchange, issued a series of executive orders nullifying all such attachments and suspending all claims against Iran pending in U.S. courts. D&M attacked the validity of the executive orders.


b)      Holding

The Court unanimously upheld the orders. The Court found sufficient congressional authorization in several vaguely related laws, none of which spoke directly to the issue, but which taken together “indicate [congressional] acceptance of a broad scope for executive action in circumstances such as those presented in this case.” The Court’s reasoning was heavily influenced by the broad foreign affairs powers acknowledged to be possessed by the President. The Court also found that was a history of such executive settlement of claims, which was also an important factor.



III.             Appointment and Removal Power


A.     Appointment Power - Overview

Article II says that the President alone appoints ambassadors, Supreme Court Justices, and officers of the United States; but Congress can vest the appointment of “INFERIOR” officers in the president, or in the federal courts, or the heads of departments. Thus, the question arises, who is an “inferior officer” within the meaning of Article II ? Also, may Congress assign the appointment power in other ways besides those enumerated in Article II? Specifically, when, if at all, may Congress give the appointment power to itself or its officers?


B.     Principal Officers v. Inferior Officers

Note that the “other Officers of the United States” consist of principal officers (the appointment of which is vested in the President subject to Senate confirmation) and inferior officers (the appointment of which Congress can give to the President, the courts, or executive department heads). Although the Court has never precisely distinguished between principal and inferior officers, principal officers consist of the highest echelon of government – cabinet secretaries and their equivalents. ANY office less powerful is probably inferior.



1)      Morrison v. Olsen (1988)

Facts: Pursuant to authorizing legislation, a “special division” of the U.S. Court of Appeals appointed an “independent prosecutor” to investigate and prosecute alleged executive wrongdoing. The Court, by a 7 to 1 margin, upheld the constitutionality of having federal judges appoint the independent counsel. The Court emphasized that it was permissible for Congress to vest appointment in the federal courts because the independent counsel is an “inferior” rather than a “principal” officer.


a)      Rationale

The Court makes three arguments as to why the independent counsel [“IC”] should be considered “inferior”:


§         First, the IC is an “inferior” officer because, under the statute, he or she can be removed by the attorney general for cause.

§         Second, the IC possesses inferior power compared to the attorney general, who has broad authority and participates in formulating policy for the executive branch. In other words, the IC was empowered only to perform certain duties.

§         Third, the Court noted that the independent counsel is appointed for a limited tenure with its jurisdiction limited by the instructions from the appointing court.

§         Finally, the Court concluded that there was no incongruity in having judges appoint the IC. Indeed, the Court said that in light of the desire for independence in investigating alleged wrongdoing within the executive branch, “the most logical place to put [the appointment power] was in the Judicial Branch.”


b)      “Black Tie Tony” Scalia’s Formalist Dissent

Scalia vigorously dissented, emphasizing that the power to prosecute is “a quintessentially executive power” and that it usurps presidential power for Congress to vest this authority in the independent counsel.” Scalia argues that it is unconstitutional to allow the IC once it has been determined that “(1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President.” Scalia said that the Constitution presumes that all executive powers are within the control of the president, and thus it is unconstitutional for Congress to vest the prosecutorial power in the IC.


C.     Formalists v. Functionalists – what’s the deal?

Morrison turns, at least in part, on the choice between a functionalist or a formalist approach. From a functionalist perspective, there is an obvious benefit to having investigations of executive officials conducted outside the executive branch. The IC is desirable because an independent individual, appointed by Art. III judges, is conducting the investigation and prosecution, rather than this being done by the Justice Department prosecutors who are ultimately answerable to the attorney general and the president. From a formalist perspective, however, Scalia emphasized that the executive power is vested solely in the President. As such, any grant of prosecutorial authority to an independent counsel is unconstitutional.  



D.     Removal Power

There is no provision of the Constitution concerning the President’s authority to remove executive branch officials. The principle that has emerged from the cases is that, in general, the president may remove executive officials unless removal is limited by statute. Congress, by statute may limit removal both if it is an office where independence from the president is desirable, and if the law does not prohibit removal but, rather, limits removal to instances where good cause is shown.


1)      Myers v. United States (U.S. 1926)

The Myers case involved the firing of a postmaster of Portland, Oregon in violation of a federal law that provided that postmasters could be removed during their four-year terms only “with the advice and consent of the Senate.” CJ Taft, a former president, wrote broadly of the President’s ability to remove executive officials. He explained that the ability to control the personnel in administrative positions was central to the executive power. He also concluded that it was the intent of the framers to place the removal power in the president. In sum, Myers stood for the broad proposition that any congressional limits on the removal power are unconstitutional.


2)      Humphrey’s Executor v. United States (U.S. 1935)

Less than a decade after Myers, the Court took a much different position and recognized that Congress could, for some officers and under some circumstances, limit the removal power. In Humphrey’s, the Court unanimously upheld the ability of Congress to limit the removal of a commissioner of the FTC. The Court explained that Congress, under Article I, could create independent “quasi-legislative or quasi-judicial” agencies and insulate their members from presidential removal unless good cause for firing existed.


a)      Distinguished from Myers

The Court distinguished Myers saying that its holding applied only to “purely executive officers” and that beyond that the opinion was merely dicta and therefore did not come within the rule of stare decisis. The Court said that officers in “quasi-legislative” or “quasi- judicial” positions are different and that Congress may limit the removal of these individuals.


b)      Distinction Between Administrative Officers and Cabinet Officials

The practical effect of Humphrey’s was in drawing a distinction between cabinet officials and those who are in independent regulatory agencies. For cabinet officials or executive agents, such as the postmaster in Myers or the secretary of state and the AG, Congress may not limit the removal power because the cabinet is there to carry out the president’s policies. BUT, for independent regulatory agencies – such as the FTC, the SEC and the FCC – Congress may limit removal to situations where there is just cause for firing. Note that this ruling was a functionalist approach. Congress, in creating the independent agencies, intended that they be insulated from political control. This approach insures that.


3)      Weiner v. United States (U.S. 1958)

The Court continued to adhere to this functionalist approach, and in Weiner, the Court went further and held that even without a statutory limit on removal, the president could not remove executive officials where independence from the president is desirable. In this case, the Court concluded that the functional need for independence of the War Claims Commission limited the president’s power of removal. The intent of the WCC was to award claims based on merit rather than on political influence. The Court that there exists a “sharp differentiation” between “those who are part of the Executive establishment and those whose tasks require absolute freedom from Executive interference.


4)      Bowsher v. Synar (U.S. 1986)

In Bowsher v. Synar, the Court announced an important limit on the removal power: Congress can not give itself the power to remove executive officials. The only exception, of course, if that Congress always can remove an executive official through the impeachment process.


5)      Morrison v. Olson (U.S. 1988)

In Morrison, the Court upheld the constitutionality of limits on the President’s ability to remove the independent counsel. The law creating the independent counsel provided that he or she could be removed by the attorney general “only for cause.” The Court upheld the constitutionality of this limit.


a)      Distinguishing Bowsher

The Court distinguished Bowsher, where the Court had declared unconstitutional Congress’s exercise of the removal power over an individual performing executive tasks. The Court here noted that Congress had no role in removal.


b)      Rationale for the Holding

The Court stressed that the IC, who exists to investigate and prosecute alleged wrongdoing in the executive branch, ideally should be independent of the president. The Court produced a test for when independence from the president is no longer desirable, stating that when “the removal restrictions are of such a nature that they impede the president’s ability to perform his constitutional duty,” independence is no longer desirable. Moreover, the Court also emphasized that the statute does not prohibit all removal; rather, it allows the AG to fire an IC “for cause.” Hence, the Court found that the limits on the removal of the IC did not violate the Constitution.


6)      The Principle That Emerges

As the law now stands, in general, the president has the power to remove executive officials, but Congress may limit the removal power if it is an office where independence from the president is desirable. Congress can not, however, completely prohibit all removal, and it cannot give the removal power to itself (other than by exercising its impeachment power).


a)      How to look at Removal Powers for Exam Purposes

In approaching an issue concerning the removal power, analysis can be divided into two questions:


(1)    Is the office one in which the independence from the president is desirable? If so Congress may limit the removal power, and Weiner indicates  that the judiciary may limit removal even in the absence of a statutory provision.

a.       How do you decide whether independence is desirable?

                                                                                                               i.      Note that Humphrey’s produced the test distinguishing between purely “executive tasks” and “quasi-legislative/quasi-judicial” tasks – but this is hard to apply in practice.

                                                                                                             ii.      Also note that Morrison indicated that if “the removal restrictions are of such a nature that they impede the president’s ability to perform his constitutional duty,” independence is no longer desirable.

                                                                                                            iii.      ULTIMATELY, however, the analysis must simply look at whether there are good reasons why the office should be independent of the president.


(2)    Are Congress’s limits on removal constitutional?

a.       Congress can not completely prohibit presidential removal, but it can limit removal where there is good cause.

b.       Congress can not give itself sole power to remove an executive official.



IV.              Legislative Action and the Administrative State


A.     The Rise of the Administrative State

Article I of the Constitution vests the legislative power in Congress. However, in the last century, federal agencies and departments have continued to gain prominence and Congress has routinely delegated its legislative power to these agencies. The Constitution does not expressly mention such agencies, and in fact, in many ways they are in tension with basic constitutional principles. Virtually all of these agencies possess rule-making power, and these rules have the force of law. This seems in conflict with the notion that Congress alone possesses the federal legislative power.


1)      Reasons Why Delegation to Administrative Agencies is Beneficial

For many reasons, Congress has delegated broad legislative power to administrative agencies. In many areas, the need for complex regulations seems better handled in a specialized agency than in Congress. Also, the sheer quantity of regulations exceeds the capacity of Congress.


2)      Argument Against Delegation to Administrative Agencies

On the other hand, there is an accountability element against this delegation. Expansive delegation of legislative power to administrative agencies allows Congress to act, but avoid the political heat that specific regulations might endure. More importantly, these federal administrative agencies possess the legislative power to make rules, the executive power to enforce them, and the judicial power to adjudicate them. This combination of functions in a single agency seems in conflict with elemental concepts of separation of powers.


B.     General Themes - Aggrandizement and Encroachment

Congressional action is void as contrary to the principle of separated powers when it creates a “danger of either aggrandizement or encroachment.”

§         Aggrandizement occurs when Congress enacts laws that accrete to a single branch powers more appropriately diffused among separate branches or impermissibly enlarges a single branch’s powers at the expense of the other branches.

§         Encroachment occurs when Congress enacts a law that undermines the authority and independence of one or another coordinate branch.


1)      Mistretta v. United States (U.S. 1989)

In Mistretta, Congress created the Sentecing Commission, “an independent commission in the judicial branch,” composed of 7 members appointed by the President subject to Senate approval, at least three of which were to be federal judges. Commissioners were removable by the President for “good cause,” and empowered to establish mandatory guidelines for federal judges.


a)      Holding

The Court upheld this delegation of legislative authority. Congress had instructed the Commission to create uniform sentences for similarly situated criminals. The Court first determined that this arrangement was not an impermissible delegation of power. THEN, the Court looked to whether this Congressional was void due to aggrandizement or encroachment. The Court held that it was not void, because the delegation to the Sentencing Commission did not enlarge the judiciary branch at the expense of another branch. (It did not take legislative power from Congress and place it in the judicial branch.) Further, it did not impermissibly threaten the institutional integrity of the Judicial Branch. As such, the delegation was upheld.


2)      Morrison v. Olson – AGAIN

The Court applied the aggrandizement and encroachment tests concerning the appointment and removal powers of the IC, and the Court determined that the arrangements – AG can only remove for “good cause”; IC appointed by DC Circuit after authority from the AG – neither aggrandized the courts nor encroached upon presidential power.


3)      Summing This Up

Both cases indicate that delegations of power to administrative officials or administrative agencies do not violate the aggrandizement or encroachment doctrine of separation of powers.


C.     Specific Limits - The Non-Delegation Doctrine

The non-delegation doctrine states the principle that Congress may not delegate its legislative power to administrative agencies. Thus, the non-delegation doctrine forces a politically accountable Congress to make the policy choices, rather than leave this to unelected administrative officials. The Court has held that in order to validly delegate authority, Congress must set forth “by legislative act an intelligible principle to which the person or body authorized to take action is directed to conform.”


1)      The Height and the Demise of the Non-Delegation Doctrine

In the mid-1930’s, the non-delegation doctrine reached its height in two key decisions which invalidated New Deal legislation. HOWEVER, in the more than sixty years since, not a single federal law has been declared an impermissible delegation of legislative power. All delegations, no matter how broad, have been upheld. Although the Court says that when Congress delegates its legislative power it must provide criteria – “intelligible principles” – to guide the agency’s exercise of discretion, all delegations, even without any criteria, have been upheld. Undoubtedly, this reflects a functionalist judicial approach that broad delegations are necessary in the complex world of the late twentieth century and that the judiciary is ill-equipped to draw meaningful lines.


2)      Look Back at Mistreatta

In the Mistretta facts, Congress created the Sentencing Commission and told it to establish sentencing guidelines that would be mandatory on federal judges. The Court upheld the arrangement. Congress had instructed the Commission to create uniform sentences for similarly situated criminals. The Court found that such instruction was an “intelligible principle . . . sufficiently specific and detailed to meet constitutional requirements.” Congress could thereafter give the Commission “significant discretion in formulating guidelines,” and could delegate the power to “exercise judgment on matters of policy.”


D.     Bicameralism, Presentment and the Legislative Veto

Art. I, §§ 1 and 7 impose a bicameralism and a presentment requirement on all legislation.

§         Bicameralism means that every bill – every legislative act – must pass both houses of Congress to become law.

§         Presentment means that every bill – every legislative act – must be presented to the President for signature or veto.


1)      The Legislative Veto

Congress created the legislative veto as a check on the actions of administrative agencies. Essentially, Congress included in statutes provisions authorizing Congress or one of its houses or committees to overturn an agency’s decision by a resolution of one house of Congress. Legislative vetoes also took the form of overturning agency rules by resolution of both houses of Congress or even by action of a congressional committee. Over 200 federal laws contained legislative veto provisions.


2)      INS v. Chadha (U.S. 1983)

After an immigration judge ruled that Chadha’s deportation be stayed, Congress, through a legislative veto function, introduced a resolution opposing the granting of citizenship to 6 individuals, including Chadha, on the ground that they did not meet the statutory requirements. The Court, in an opinion by CJ Burger, declared this legislative veto to be unconstitutional. Burger’s opinion can best be described as a syllogism.


a)      Burger’s Syllogism


i          Major Premise

The major premise of the syllogism is that Congress may legislate only if there is bicameralism, passage by both the House and the Senate, and presentment, giving the bill to the president to sign or veto. Burger’s opinion relied on a textual and historical approach, citing constitutional provisions and quoting from the Federalist Papers.




ii        Minor Premise

The minor premise of the syllogism was that the legislative veto was legislation without bicameralism and presentment. Burger declared that the action was essentially legislative in purpose and effect. The effect of the legislative veto was to “alter the legal rights, duties and relations of persons.” Accordingly, it was legislation, an it did not fit into any of the limited situations under the Constitution where one branch of Congress can act alone.


iii      Conclusion

The conclusion thus followed that the legislative veto was unconstitutional. Moreover, CJ Burger expressly rejected the position that the legislative veto was necessary to ensure adequate checks and balances.


b)      White’s Dissent

Justice White wrote a strong dissenting opinion that emphasized the need for the legislative veto as a check on the broad delegations of legislative power. He explained that without the legislative veto, Congress is faced with Hobson’s choice: either to refrain from delegating the the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its lawmaking function to the Executive Branch and independent agencies with no check on that abdication.


c)      Once Again – Formalism v. Functionalism

Burger’s majority opinion was highly formalistic. White’s was functionalist. Burger emphasized the formal structure prescribed in the Constitution and dismissed the functional concern that the legislative veto was essential to check administrative power. White, on the other hand, bought into the functional approach, contending that such approach was necessary and that the framers could not have foreseen what developments the government would take. Thus, the formalist approach is too rigid.


3)      Line Item Veto

Under the veto power, Congress controls the form and content of the legislation presented to the President. Bills typically contain a variety of provisions; the President may not pick and choose – legislation is a “take it or leave it” proposition. The Line Item Veto Act gave the President power to “cancel in whole” three types of provisions signed into law: (1) any amount of discretionary budget authority, (2) any item of new direct spending, and (3) any “limited” tax benefit.


a)      Clinton v. New York (U.S. 1998)

President Clinton used this power to cancel an item of direct spending in favor of New York and a limited tax benefit in favor of certain agricultural cooperatives. The Court invalidated the Line Item Veto Act on the ground that cancellation of provisions signed into law amounted to a partial repeal of the law by the President alone, in violation of the bicameralism and presentment requirements.  The Court rested its decisions on several grounds: (1) Historically, the veto power was viewed in whole and not in just parts of bills; (2) This was not similar to the Tariff Act, because it cancelled an item of spending made by Congress, which was in contrast with Congress’s rationale.


E.     Immunities and Privileges

In order to preserve the autonomy of each branch of government, the Constitution confers certain immunities and privileges upon executive, legislative and judicial officials.


1)      Legislative Immunities

The Constitution explicitly confers a limited immunity from suit on members of Congress.


a)      The Speech and Debate Clause

Art. I, §6 provides that members of Congress “shall not be questioned in any other Place . . . for any Speech or Debate in either House.” The purpose for such immunity is to foster uninhibited legislative debate and to protect legislators from the distraction of defending suits based on the performance of their duties.


i          Scope

Members of Congress are absolutely immune from suits (civil or criminal) or grand jury investigation premised on their legislative acts. Members of Congress may also assert their immunity to protect the “legislative acts” of their aides. “Legislative acts” comprise everything that is integral to “the deliberative and communicative processes by which members participate” in the official business of Congress. Legislative acts include not only the literal “speeches and debates” but also voting, committee work, and other official business.


b)      The Privilege from Arrest

Art. I., §6 also provides that, except for cases of “Treason, Felony or Breach of Peace,” members of Congress are “privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same.” Translated into modern parlance, it is best read as temporary immunity from civil suit during the pendency of congressional sessions.


2)      Executive Immunities

The Constitution does not expressly confer any immunity upon the President or other executive branch officials, but the courts have created a limited immunity from suit for both, implied from the Constitution’s structure and as part of “federal common law.”


a)      Sources of Immunity


i          Presidential Immunity

The courts have found an implied immunity for the President in the doctrine of separation of powers. The Supreme Court has said that absolute presidential immunity for the President’s official acts is “a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of separation of powers and supported by our history.”


ii        Other Executive Officers’ Immunity

Executive branch officials have long enjoyed judicially created common law immunity from civil suit for acts performed in the course of their official duties. However, this immunity is not as extensive as the President’s.


b)      Immunity from Judicial Process

Neither the President nor other executive branch officials are immune from judicial process. Thus, they are susceptible to the court’s subpoena power, both with respect to their testimony and documents in their custody. If sufficiently justified, the President may be able to protect the confidentiality of some matters by invoking executive privilege.


c)      Presidential Immunity from Civil Liability Based on Official Acts

The President is absolutely immune from civil suits for damages based on the President’s official acts. In Nixon v. Fitzgerald, the Court ruled that the President was absolutely immune for official actions, and such immunity could not be limited to “particular functions” of the Presidency, but extended to all “acts within the ‘outer perimeter’ of his official responsibility.


d)      No Immunity from Civil Liability Based on Unofficial Acts

However, the President does not possess immunity from civil suits based on his non-official actions.


i          Clinton v. Jones (U.S. 1997)

Paula Jones, a onetime Arkansas state employee, sued President Clinton for sexual harassment, charging that he asked her for sexual favors while he was Governor of Arkansas. President Clinton claimed temporary immunity from suit during his incumbency. The Court disagreed. Presidential immunity, an implied aspect of the separation of powers doctrine, exists only to permit the President to perform his official actions without fear of suit. It has no application to the President’s unofficial conduct. Though not constitutionally required, a trail judge has “broad discretion to stay proceedings” to minimize “interference with the President’s duties.”


e)      Non-Presidential Executive Immunity from Civil Liability - Official Acts

Executive officials subordinate to the President enjoy a qualified immunity, limited to actions taken in good faith in connection with official duties. Executive officials have good faith immunity – for official actions taken in good faith – and such immunity is proven by showing that the executive office had a reasonable basis to believe that his or her action was lawful.


f)        Immunity from Criminal Prosecution

It has not been decided upon whether the President enjoys any immunity from criminal prosecutions. Some argue that impeachment is the sole remedy; others argue that there is probably no immunity from criminal prosecution. NOTE: The issue has never been adjudicated, so we have no precedent to go on.


3)      Executive Privilege

Unlike immunity from liability, executive privilege is an evidentiary privilege held by the President, limited in scope, that can be raised to protect presidential confidentiality in wither judicial or legislative proceedings. The privilege is constitutionally mandated, inferred from the Constitutional structure in order to protect the President from “encroachment” by either Congress or the courts.


a)      United States v. Nixon (U.S. 1974)

Facts: President Nixon recorded his Oval Office conversations and stored the tapes for later reference. Nixon himself became the subject of a criminal investigation into a conspiracy to obstruct justice, centering on his involvement in al alleged “cover-up” of the Watergate burglary (in which the Democratic HDQ had been burgled by agents of the President’s re-election campaign). In the course of the criminal proceedings against Nixon’s top aides, a federal court issued a subpoena to Nixon to produce certain of his tape recordings. Nixon asserted that the President was immune from all judicial process and that he enjoyed an absolute executive privilege to withhold information he deemed confidential. The Court rejected Nixon’s claims. The Court’s analysis rested on three major points:


i          No Immunity From Judicial Process

The Court held that it is the role of the Court to decide whether the President has executive privilege and, if so, its scope. Nixon claimed that the Constitution gave the president executive privilege and that the president alone determined its reach. The Court flatly rejected this contention, falling back on and unequivocally reaffirming the holding of Marbury v. Madison, that “it is emphatically the province and duty of the judicial department to say what the law is.” 


ii        Need for Executive Privilege

The Court then recognized the existence of executive privilege. The Court recognized that the need for candor in communications with advisors justified executive privilege; indeed, the Court said that a need for confidentiality was “too plain to require further discussion.” Although Art. II of the Constitution does not expressly grant this power to the president, the Court said that “the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain power and privileges flow from the nature of enumerated powers; the protection of the confidentiality of the Presidential communications has similar constitutional underpinnings.” THUS, in this case, the Court is recognizing executive privilege as an inherent presidential power.


iii      Executive Privilege Not Absolute: Yields to Countervailing Interests

Third, the Court held that executive privilege is not absolute, but rather must yield when there are important countervailing interests. The Court explained that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.” In the case, the Court balanced Nixon’s need for executive confidentiality (mostly avoidance of political disaster) versus the criminal justice system’s need for probative evidence of crime or exculpation (essential to the guarantee of a fair trial), and concluded that executive privilege was not appropriate in this scenario.


b)      Scope – Open Questions

The precise scope of the qualified executive privilege is undetermined, but at least the following principles apply:

§         The privilege is strongest when revelation of a state secret (highly sensitive information critical to national security) is sought. The courts will likely inspect the evidence in camera – privately – before ruling.

§         The privilege is weakest when a criminal defendant seeks information (not a state secret) to bolster his defense.

§         The privilege extends to all civil cases and it is probable that civil cases are on the same footing as criminal cases

§         The President may assert the privilege with respect to presidential communications or documents even after leaving office.

§         The availability of executive privilege in response to congressional subpoena is highly controversial, but likely subject to judicial resolution. Instead, in this situation, impeachment is possible.

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