Constitutional Law Essay Research Paper CONSTITUTIONAL LAWTwo

Constitutional Law Essay, Research Paper CONSTITUTIONAL LAW Two foundations of our government, the Declaration of Independence and the Constitution.

Constitutional Law Essay, Research Paper


Two foundations of our government, the Declaration of Independence and the Constitution.

-Individual rights from God, give up some liberty to the state.

-A federation is a union of states.

-States do not give up their own sovereignty.

-Taxation supports the army

-balance of power-

-absolute power corrupts. fed. v. state

Central gov?t of seperated powers, the three branches of limited and separate power.

1st Attempt, the Articles of Confederation. The constitution protects individuals from the government, places restrictions on the gov?t.

Three categories:

IDiscussion of the Supreme Court and other federal courts.

IIGovernmental bodies created by the constitution

A.Struggle between Federal v. Federal

B.Struggle between Federal v. State

IIIStruggles between the Gov?t (state and/or federal) v. Individual

IDiscussion of the Supreme Court and other federal courts.

Article III ? creates the Supreme Court.

Article I ? creates the Congress

The president nominates the judges and Congress approves the nomination. Life tenure for federal judges.

Congress decides how many justices on the federal court. The Supreme Court divides its authority between original and appellate jurisdiction.

IIGovernmental bodies created by the constitution

A.Struggle between Federal v. Federal

MARBURY v. MADISON (power grab or seizure of power by Marshall for the ct.)

1788-the const. was ratified. G.W. brought in a Federalist Congress and judges for 8 years. Adams and Marshall kept the Federalists alive in the Judiciary.

-Jefferson issued and executive order to Madison not to deliver the Commission for justice of the peace to Marbury.

-Marbury wants writ of mandamus from supreme ct.

Is this a proper case for the issue of a writ of mandamus? Yes.- A federal officer is refusing to perform a mandatory duty (not a discretionary duty-in which the court can?t issue mandamus).

-It is a ministerial, mandatory duty of delivering the commission. Marshall goes further as to whether the supreme ct. should issue the writ.

-Marbury presents statutory authority that he is in the right ct. The Judiciary Act of 1789. Congress created the act. p4d.

Whether Congress has the power to give this jurisdiction to the Ct?

-Marshall cites the Const. Art. III. Sup. ct has original and appellate jurisdiction ?2 (2).

-Madison is not a public minister nor a diplomat. Sup. ct does not have original jurisdiction.

The statute and the Const. conflict. Congress v. Const.

-Const. superior to any law made by Congress.

-Const. is to be the supreme law, not a federal statute.

Supremacy Clause- Article 6 sub. 2 p.1447

-Sup. Ct. declared the act (Judiciary Act) of congress unconstitutional. Judicial Review- the power to declare acts of Congress unconstitutional.

-Marshall should have interpreted the statute to avoid constitutional conflict. p4 d. The Judiciary Act.

-Gives the sup. ct. authority to issue writs of mandamus only in regard to appellate jurisdiction.

-There is nothing wrong with the statute. Marbury should have gone to the lower ct. and then appealed if it ruled against him. It was necessary to hold the statute unconstitutional.

-Marshall said Sup. ct. can issue writs of mandamus on original jurisdiction.

-Oath to uphold the Constitution by the three branches. The Act is constitutional. The branches are co-equal, have as much power as judiciary.

-The other branches silently agreed w/ the sup. ct. about the unconstitutionality of the act.

No general agreement or majority rules.

Anti-majoritarian rule- the weight of 5 judges v. everyone else.

Exception in history where what the fed. ct. said wasn?t followed: the Cherokee Indian Cases

-land was given to the Indians by Federal Treaty. State of Georgia violated treaty. Pres. had the power to enforce the court order but didn?t.

-Sup. ct. cannot enforce its own laws, no purse (Congress), and no sword (president).

-Sup. ct. infallible because they are final, the ct. looks at the case last.

-Sup. ct. can declare acts and laws of Congress and states unconstitutional.


1.Get Congress to issue a writ of impeachment v. a judge or judges. -Jefferson and Madison wanted to impeach Marshall, but couldn?t even impeach Chase.

2.Get Congress to increase the number of judges to overturn the ruling. ?Court packing Plan? of F.D.R.

Amend the const. Congress has to initiate the amendment, 2/3 of Congress to propose, and ? of the states to ratify.

Don?t re-elect the pres. who appointed those judges..

Art. III- make an act, exceptions to appellate jurisdiction ?as Congress may make.? Change the appellate jurisdiction of the supreme ct.

Criticize the decision of the court by the media, which might make them change their views.

-Article III- no federal cts. of general juris.- limitation on what is given to fed. cts.

Federal Courts have Judicial Power over:

All cases under constitutional issues, federal law, or treaties (Federal question jurisdiction.)

Ambassadors, international matters, public ministers, and consuls.

Admiralty and maritime law.

Cases involving the U.S. as a plaintiff or def.

Cases between two different states.

State v. citizen of another state

citizens of two different states ?diversity of citizenship.

Congress can?t grant more power that Art. III already gave, but it can take away power.


-case based on a federal treaty. State court, state case, interpreted the treaty. loser says it was decided incorrectly and it goes up to Sup. ct.

-federal question jurisdiction, sup. ct. has jurisdicition.

-state court does not want to follow the sup. ct.?s mandate.

-The sup. ct. has jurisdiction, by way of the Judiciary Act

-State court says Congress did not have the power to give the Sup. Ct. that power found in Judiciary act, which then violates Article III. State says sup. ct. has jurisd. only if the lower ct. was a fed. ct.

-therefore, only if the case arose in the federal system. The sup. ct. has no authority if the case arose in a state ct., since there is no mention of state courts in Art. III.

-Article III states the Sup. Ct . can decide all cases. State cts. have to decide const. issues. state judges can come to different conclusions about the same law. Federal law should be uniform.

-Fed. ct. has the last word on whether the state ct.?s ruling is correct or not.


-the lottery is illegal in Virginia. Cohen is a lottery agent who is licensed in D.C. under federal statute. Appeals to highest ct. in Virginia. Writ to sup. ct. Federal question jurisdiction, issue is of a federal law.

-For appellate jurisdiction, there is diversity jurisdiction, citizen of one state v. another state.

-two grounds for jurisdiction in Art. III.

*In criminal matters, the sup. ct. has appellate jurisdiction under the constitution for due process violations.

Limitations on Judicial Power: -cases or controversies, or else an order of a fed. ct. is not valid.

there has to be actual contending litigants

there has to be concrete injury that can be fixed ( injury-in-fact).

*fed. cts. cannot issue advisory opinions. Separation of powers, it would be like interfering with another co-equal branch.

Article III ? governs the jurisdiction of the federal courts. there may also be other jurisdiction in article III, but Congress has not granted that authority.

Congressional laws are superior to state law.

to have standing, the doctrine of case or controversy must be present.

unconstitutionality and injury-in-fact.

federal question in state court- the judge can test the constitutionality of the federal law in a state court.

the state ct. judge looks at two federal laws, the constitution and the federal statute in deciding.

Can a state judge declare a federal statute unconstitutional in a state court. Yes, he swore an oath to uphold the constitution.

-there must be uniformity, a federal statute has to be uniform in every state.

if federal question jurisdiction is present and the state is a party, then appellate jurisdiction is given to the supreme ct. not original jurisdiction.

To bring a case to a federal court as a plaintiff, you need:

a case or controversy;

standing- an injury (solid, personal, concrete injury)

Article III states no federal court jurisdiction unless it is a case or controversy and there is an aggrieved person.

-the sup. ct. cannot review an advisory opinion of the ct. of appeals because it is not a case or controversy.

the sup. ct. cannot review the law because of the separation of powers, it would be interfering with the other branches.


-the plaintiff is suing on behalf of the black public school children.

-white private segregated schools get a tax exemption by the IRS. IRS says its not discriminating.

the tax exemption does not directly discriminate. the plaintiffs want integration if public schools, not private.

giving exemptions to all private schools includes desegregated schools.

the injury is stigmatic.- all blacks are inferior, reflects on the whole race.

can?t sue under stigmatic injury.

the only people who have standing are the black people in that district that want to enter the private tax exempt school.

injury= lack of integrated education. Even now they don?t have standing, because they are not being injured by the IRS.

in order to have injury-in-fact, the person you are suing has to be the cause of injury.

therefore, an order of the court cannot redress the injury.

plaintiffs says it will because private schools will be less affordable without the tax exemption, discourage desegregation, because the people from the private school will go to public schools.

the ct. says no to this argument. plaintiffs have not shown that the amount of deduction would cause that hypo, too speculative.

Under Article III, the bedrock of case or controversy doctrine is the separation of powers.

Doctrine of Prudential Limitation : judicially self-imposed limits.

the court will refuse to take the case, if the injury sought won?t justify their interference with the other branches.

3rd party standing- the right to raise another person?s right, even if it also hurts you, you?re hurt by a violation of his constitutional rights.

the ct. will most likely not give standing because the person whose right?s are violated has the best case.

prudential limitation is under article III jurisdiction.

the ct. can allow the 3rd party jurisdiction later on if the litigant before the court has just as good a position or the only position to raise the right of the 3rd party.

the litigant must be injured.

example: poor women who want abortions

dr. who renders abortion brings the case.

no standing? the dr. has standing, injury of loss of money.

let the dr. raise the right of poor women, they will never bring it.

* Prudential limitation is not an article III limitation, it is a 3rd party limitation.

U.S. v. SCRAP- R.R. charges too much for the shipping of scrap metals.

-standing with regard to objecting to a federal agency.

-any person aggrieved by a federal agency may sue in federal ct.

-there must be an injury

-Congress wants people to be able to sue if they have problems with the Federal agency as long as they are aggrieved. Need the same standing as in Art. III

-plaintiffs claim is that the price of shipping is too high, therefore recycling is too expensive, and the park is polluted, this is not injury-in-fact.

- standing requires causation, a remote chain of causation.

- this is too speculative, there is no causation.

- Aesthetic injury is enough injury to satisfy injury-in-fact.


-poor people v. I.R.S. for giving tax deductions to hospitals who treat poor people for nothing.

-plaintiffs want the I.R.S. to take the tax exemptions away, and than it give it back, when the hospitals treat them for nothing.

-ct. said no standing, it is too speculative to say tax deductions will allow the hospitals to treat poor people for nothing.

-*the dissent – says the causation here is still clearer than that of SCRAP.

- this is not an Art. III case, it has nothing to do with the limitation.

SIERRA CLUB v. MORTON- the club wants to object to a ruling that allows a ski resort to destroy the park.

-injury-in-fact is not present in this case.

- plaintiffs alleged that any of its members who go to the park, suffer aesthetic injury.

-the club is the plaintiff in this case, not the members. The organization can sue for its members, but the members have to be injured.

-if the club sues then there must be a relationship between the purpose of the club and the injury suffered by the members.


- Federal law that women will receive more S.S. money than men, and that if anyone objects, no one gets the money.

-plaintiff is a man, who but for his gender, would be getting the extra money.

- he has no standing, because the ct. cannot redress the injury. Since the man objected he will not get any money, regardless of what the ct. says.

-Equal treatment is the claim he should have made, because if he wins then no one gets the money.

-the ct. could redress that injury, therefore he would have standing.

Standing: the power of any federal ct. to take a case.

-state cts. can render advisory opinions.

The supreme ct. is an anti-majoritarian body that can strike down a law everybody likes and declare it unconstitutional.

- the ct. is not anti-majoritarian when it strikes down a statute which violates a higher law (the constitution)

-the constitution is not anti-majoritarian, it was ratified by all the states.

- the constitution makes a law invalid.

- there is no provision in the constitution that makes a statute/law unconstitutional. The sup. Ct. can just declare it unconstitutional

-the ct. can go beyond interpreting to revising the law, and this is when the sup. Ct. is anti-majoritarian.

P. 1448- the 3rd amend.-Quartering Act. Look at the spirit of the constitutional amend, not only the words, to see if it is still valid and constitutional.


- there was a federal law that a committee had to review the effect of a project on the endangerment of a species before money could be expended for that project.

- the review was limited to projects within the U.S. Outside the U.S. review was not required.

- do the defenders of Wildlife have standing to object?

- Congress said that under the Administrative Procedure Act, only an aggrieved party has standing.

-this federal statute stated that any person can bring an action. There is a conflict between the two fed. acts.

- A person is needed to represent the wildlife.

- ct. said D.O.W. have no standing because there is no case or controversy.

- plaintiffs allege that Congress gave them standing to sue in fed. ct. to make sure the law is properly enforced.

- ct. stated that there was no injury-in-fact to the plaintiffs. All the ct. can do is declare the law of congress unconstitutional.

-under Art. III, no matter who the suit is against, there is no standing without an injury to redress.

- any person who has injury can sue, even aesthetic injury.

*Congress can create a new right, the violation of which would cause injury and allow the plaintiff to have standing. Such as the right to accurate information. The injury would be in not having the correct info. Congress did not create standing that didn?t exist, it just created a new right.

P. 143 FEC. v. AKINS -Congress created the public rights for voters to have information about the candidates. Any voter has a right to information, the violation of the right would create an injury and would require a remedy. A voter has standing for the delusion of his vote.

IITax-payer standing


-Congress was spending the tax-payer?s money on programs to reduce infant mortality.

-the states were receiving the money.

-the (plaintiffs) tax-payers claim that there is no authority in the const. to spend money.

-do tax-payers have the right to object to Congress?s spending.

-sup. Ct. said plaintiffs do not have standing because the injury is to minuscule. Their contribution is to small to justify a suit.

-this doesn?t mean that tax-payers can?t object to federal spending. There is a difference between regulatory and pure spending.

*The tax-payer can object to two things:

1. The tax on him.

2. The spending of the tax revenue.


-tax-payer objects to money to religious parochial schools, therefore an objection to the spending of the tax revenue.

-the ct. states that to have standing, the plaintiff needs to allege the nature of the constitutional infringement.

-plaintiff states the spending is forbidden by the const. in the Establishment Clause, which forbids spending. It acts as a specific limitation on Congress?s spending power.

-the history of this clause was to prohibit the gov?t from building a U.S. church.

-the tax-payer has standing if he can allege the money is being spent for something that is forbidden in the constitution.

-the question is how strict will the ct. be in limiting the tax-payer?s ground?


-the only people who can object to federal spending are the people not receiving the money because they suffer the injury.

-the gov?t was giving property (not money) to the seminary.

-plaintiffs claim violation of Establishment Clause. Use the two prong test from Flast.

-the plaintiff is objecting to the spending of the tax revenue.

-have to allege a violation of constitution.

-ct. says the tax-payer has no standing.

-it is not a Congressional Act, it is an executive agency that is giving them the property

-it has nothing to do with spending authority. It is distribution of property under the Property Clause.

-It is not the same thing as pure spending which would violate the Establishment Clause.


-plaintiff claims redistricting is a violation of the equal protection law. If you live in that district, you are adversely affected.

*a person can go into federal ct. and get a declaratory judgement that an abortional act is unconstitutional, if the case is ripe enough.

-an organization wanting an injunction against a spy following it at public meetings is an unripe case, no case or controversy present, only a threat of an unspecified harm.

Mootness: a genuine case or controversy can turn into a moot case, when the remedy has no affect on the litigant. Ex. Roe v. Wade.

-A moot case in prudential power will not take.

-The mootness doctrine is mitigated if:

1. The case is capable of repetition but evading review or

2. The same litigants are present but it is evading review to the same litigants.

The federal courts do not have the power to hear a case just because it is in Article III. Affirmative congressional action and enumeration in Article are needed to grant federal courts jurisdiction. Jurisdiction is limited to case or controversy w/ standing and injury.


The doctrine of capable of repetition but evading review, allows the court to rule on Roe v. Wade.

This is all within the prudential discretion of the supreme court.

Doctrine: Adequate and independent state ground for the state?s decision, then there?s no ground for the Supreme ct. to take the case other than for a federal question.

Ex. Gun seizure violates the 4th Amend. Of N.Y. Const. & U.S. const.

The State court can interpret its own constitution to give greater weight than that of the U.S. const, prosecutor still loses on N.Y. cons.

-Sup. Ct. cannot say the Ct. of Appeals interpretted the N.Y. const. wrong, unless it?s interpretation violates the U.S. constitution. Ct. of appeals can grant more rights, not less.

-11th Amend. Took away fed. Cts power to have jurisdiction of state v. state, cit. Of state v. other state, etc.

-This was changed by article III in EX PARTE v. YOUNG


-R.R. v. the state in fed. Ct. This is not an action against the state of Minnesota, the atty. General of Minnesota.

-therefore it may proceed in federal ct. w/an injunction for violation of 14th amend. ?no state shall deny?, not atty. General. Supreme ct. doesn?t care.

-As long as the individual is named and not the state ( hence state agency), you will get into federal ct, as long as the remedy you seek is an INJUCTION!!!!

Enabling clause of the 14th Amend. ? grants authority to Congress to legislate under the Equal Protection Clause. It tells the states not to discriminate on the basis of gender.

-it was ratified by the states. Its OK to sue in fed. Ct. for an action under the 14th amend. For money.

-Congress passes overtime law to states. States claim that the 11th am. Was passed before the Commerce clause Art. 1 ? 8, therefore the clause is limited by the 11th Amendment.

PENNSYLVANIA v. UNION GAS – as long as Congress?s intent makes it clear that the state court is to bring its claim in federal ct. in the legislation.

SEMINOLE TRIBE v. FLORIDA – now Congress says no, overrules Penn v. Union Gas.

-Congress?s commerce clause is stopped by the 11th amend. for suing in fed. Ct. for money.

-Pass a federal statute that under the commerce clause an injured citizen can sue the state in state ct.

-States have sovereign immunity, states cannot be sued without their consent . This doctrine pre-existed the Constitution.

ALDEN v. MAINE – for the state sovereign immunity.

Political question cases- political process and voting, political remedy.

-a fed ct. cannot take political question cases.

NIXON v. U.S. – federal judges have tenure for life, they have to be impeached to be removed.

-Nixon charged with false statements under oath. Went to prison and still collected his salary.

-Congress appointed a committee, not the whole senate to investigate.

-Art. I- Senate shall have the sole power to impeach.

- Sup. Ct. said it?s a politcal question, and cannot get involved.

- Policy ? cts. Should not get involved if judges get impeached.

POWEL v. McCORMACK – there is a textual commitment in the const. to another branch in Art. I

-Political question, Art. 1 ?5 , the House shall judge the qualifications of its members Art. I ?2 re: age,

citizenship, and residency.

-Political question = 1. Textual commitment shown in none of the business of fed. ct. ?

2.Baker v. Carr- underepresentation of the legislative districts with differing population

violates the equal protection law.

Remedy – is that the districts have to be redrawn.

- it was for the legislature and not the judge to redraw

- no judicially mangeable standards ( ultimately the ct. can manage this)

- issue an order to legislature to redistrict

- not a political question. 1 person 1 vote. Same number of people in each district.

Political Question: 1. the time the amendment was passed.

3. can the pres. decide that a treaty is no longer in effect. Recognition power of the

president to recognize a foreign country.

4. The training of the National guard, power of Congress textually committed.

5. Power of Congress in deciding the jurisdiction of the fed. cts. Congress can take away

appellate jurisdiction from the sup. ct. Art. III with such exceptions as Congress may make.

EXPARTE v. McCARDLE (1869) ? McCardle is a writer. Pass a law removing military cases from the jurisdiction of sup. ct. or federal ct.

-Lower fed. cts were never given appellate jurisdiction by Congress in regards to Criminal cases.

- Congress can take away and/or grant to the lower fed. cts. (districts & circuit cts.), because they were not necessary, but created by Congress under Art. III.

-Certioriari is limited to two attempts.

- In cases between two states, the sup. ct. gives the case to a special master in a trial with original jurisdiction.

***Can congress take away all appellate jurisdiction? The ct. will say it would be unconstitutional. Congress can seek help from the Pres. to take away a judges salary.

-Sup. ct. first met in N.Y. in 1719.

-In 1920 Certioriari was created. Gave sup. ct. the right to choose whether they wanted to hear. Exception, they had to hear all appellate cases.

-1988, now they decide what they want to hear.

1. When the decision has a consequence of general significance, not only affects one individual.

2. When there is a split in the federal circuits for the need of uniformity.

-The rule of 4: If four justices think a case is important enough to be heard, it will be heard. But the other five can revoke as improvidently granted and not hear the case.

B.Struggle between Federal v. State

LEGISLATIVE BRANCH: Senate and the House of Representatives

-states feared losing sovereignty.

-congress can regulate for the general welfare.

-can?t do anything that would violate the const. of N.Y.S.

*What if the state const. violated the U.S. const.?

-fed. gov?t ?s power is enumerated in a list-confines/limits its power.

-the states can violate the U.S. const. by only one way.

-congress can violate the const. in two ways:

1. violate the express provisions in const.

2. passing a law which is not forbidden in const. but is beyond its enumerated powers.

-Art. I (1) & I (8)-Congress? power to tax and spend for the general welfare, not REGULATE.

-all other powers must be found in the enumeration.

-Bill of Rights- limit Congress? powers, list of things Congress can?t do to the states.

-the 9th and 10th amend. reserve power to the states.


-Congress charters a federal bank of the U.S. run by private individuals, which lends money to state banks.

- state legislatures decide to tax the bank $15,000.00 a year. McCullough was the cashier.

- holding: state cound not tax bank of the U.S. ( a federal bank)

- The supremacy clause Art. VI (2), federal laws are supreme, superior to state laws.

- the state claimed that it has to be a constitutional law of the U.S. not an enumerated authority.

- Marshall says ?necessary and proper? clause Art. I (18)

- state says that is a limitation on federal power, since ?necessary?= absolutely necessary.

- Marshall defines ?necessary? as convenient, useful. Also, ?absolutely necessary is found elsewhere in the constitution, therefore, necessary=necessary, helpful.

- Was it const. to create a bank of U.S. ? Yes.

- must be able to link a federal law to an enumrated power.

Commerce Clause: a clear grant of enumerated power, under Art. I ?8 (d) 3

GIBBONS v. ODGEN ? Odgen, an assignee of Fulton?s right to navigate.

-N.Y. state law gave Fulton monopoly over the seas, control of trade.

- Gibbons tried to sail from N.Y. to N.J.

- engaged in interstate commerce.

- state gov?t can?t control interstate commerce, only the fed. gov?t can regulate int. comm.

- N.Y. was infringing upon fed. power, under Art. I ?8.

- commerce does not only mean buying and selling of goods. It also means intercourse between two states.

1. The mere grant of power to Congress over commerce means that the state is deprived of any power to regulate.

2. Gibbons had a federal license for interstate waters. State law does not supercede fed. law under supremacy clause.

*Suppose there was no federal law or license, then is N.Y. state free to stop Gibbons?

-ct says no. The commerce clause pre-empts any N.Y. law, even though congress has taken no

action to enact it. The mere existence of c.c. deprives the states of that power.

- The dormant commerce clause and state power over interstate commerce.

- states have always had the right to pass inspection laws for diseases. This is not motivated by money, but by the protection of the general welfare.

*if manufacturing is local, then there is no fed. regulation. (ex. mining, no fed . regulation.)

Lottery Cases:CHAMPION v. AMES

-federal law that prohibits the shipment of lottery tickets from state to state=interstate commerce

-Is Congress? power to prohibit w/in regulation of interstate commerce?

-ct. says yes, it is the same thing. Regulations all include prohibitions.

-trying to stop people from gambling (pestulance), corrupting the morals of the people.

Public Policy: gambling has a bad moral purpose.


-congress fixed the rates of interstate railroads.

- common market for U.S., no barriers

- the state R.R. co.?s were competing with interstate R.R.?s

- Congress told the state R.R. to raise their rates.

- local activity affects interstate R.R.

- substantial economic effect on interstate R.R.

*Congress can?t pass a law that violates the const. or exceeds the power delegated to it. If there is no enumerated power, Congress can?t do it.

-The commerce claus is an enumerated power.

-regulation includes prohibition.

- the interstate transport has to substantially affect interstate commerce, because congress cannot regulate for the general welfare.

*Can congress regulate for the general welfare within the states through the commerce clause?

-Congress can form public policy if it has an enumerated authority (ex. lottery cases & moral effect of gambling.)


-child labor & immoral and unfair competition among the states.

-Congress was exceeding its power under the commerce clause.

- in the lottery cases, the tickets were evil in themselves, these goods are harmless clothing.

- Hammer is the U.S. attorney trying to enforce anti-child labor laws.

- Dagenhart was the father of one of the children workers.

- Justice Holmes dissented- the power given to Congress is plenary, regardless of whether the goods are harmless or not.

- the power of commerce is total, even to enforce morality, unless it violates a provision in the constitution.


- wages and hours fixed by Congress in the mining industry.

- states claim congress has no authority.

- congress claims wages paid to coal miners has a direct affect on interstate commerce due to labor strikes.

- labor v. employer is w/in local authority

- cause-and-effect not present, no chain of causation

- commodities before interstate commerce has begun, power does not attach.


- employer would fire union organizer.

- employer had markets in other states, affecting interstate commerce.

- substantial relationship (effect) on interstate commerce (direct effect not required)

- effect has to be 1. substantial and 2. economic.

In NLRB v. FRIEDMAN-HARRY MARKS CLOTHING- the court looks at the industry, even though the company accounts for less than 1% of mens clothing.


- local lumber mill, wages & hours, Federal Labor Standards Act.

- subject to the act if 1. you have employees working on goods intended for interstate commerce, and 2. if you keep those goods out of interstate commerce, if they violate the act.

- the ct. cites Holmes, congress has total power to keep the goods out of interstate commerce, even for a moral reason.


- can regulate local activities if there is a substantial effect on interstate commerce.

*can congress pass a law without having the enumerated authority?

-states claim the10th Amend. ? if the powers are reserved to the states, then congress does not have that power.

- the fixing of wages is part of exercising the commerce clause.

- mere fact that the state has the authority, does not mean congress does not.


- agricultural adjustment act re: wheat. Gov?t limited the amount of wheat produced.

- if a farmer produced a surplus, there?s a penalty.

- the ct. upheld the act, wheat prices drop due to the surplus.

- limiting the amount of wheat increases the market price.

- farmer?s surplus not intended for interstate commerce, for family and animal use.

- farmer not buying any wheat, not a purchaser.

- non-purchase substantially affects interstate commerce.

- he is a member of a class of farmers who have a surplus.

*Congress has fixed rent control after the war.

RICO case-based on commerce clause. Racketeer influenced and corrupt organizations=federal offense.


- loan shark racket ? ?extortionate extension of credit?, method of collection=violence

- unlawfully high interest rates.

- states have the power to regulate

- congress used the commerce clause, organized crime has an effect on commerce.

- loan sharks as a class.

*Food and Drug Acts passed through the commerce clause. Mislabeling of drugs.

-druggist misbranding.

- once in interstate commerce, congress?s power attaches, even if it?s movement has rested in one state.

- furthest possible reaches of authority under the commerce clause.


-states with no discriminatory laws.

-Congress? primary motive is morality

-enumerated authority is the commerce clause.


-motel discriminated against blacks

-no law in Georgia that requires motel owners to let blacks in.

- Civil Rights Act of 1964 & the Enabling Clause of the 14th Amendment.

- 14th Amendment says ?no state shall deny?, not motel owner, doesn?t help.

- then use the commerce clause, activity affects interstate commerce.

- Location of motel, advertisements, out-of-state travelers affected.

- Black people won?t travel, interstate commerce affected.


- Ollies Barbeque didn?t seat black people, only through the takeout window.

- Restaurant purchased food from out-of-state

- Class argument, the class is substantial therefore there is a substantial affect.

- Deny customers, deny sales = adverse affect.

- Ollie claims then white people won?t come.


- state have to regulate strip mining

- strip mining is cheaper thatn shaft mining

- federal regulation to put the top soil back.

- Substantial effect, quantitative ($5million) vs. % (.006)

- rational basis for concluding that surface coal mining has substantial effects on interstate commerce.

- Regulatory standards necessary for state competition.


-ct. said surface mining disturbed annual net.

- infintismal amount of acres of farmland

- ct. said not the volume of commerce, just that interstate commerce is affected.


- has to limit congress, or else everything substantially effects the economy.

- Guns in school case

Congress passes a regulation pretending to be a tax

- child labor tax law

- power to tax is different from power to regulate.

- Congress doesn?t like to use taxes to discourtage activity.

- Uses its power to spend, do this and we?ll pay you (inducement)


-regulated agriculture, pay farmers for not growing.

- the tax payer objects, unconstitutional.

- Madison= congress can spend as long as they have the enumerated power.

- The ct. likes Hamilton?s view, spending power is not limited by regulatory authority, the ct. says it is.


- Depression, unemployment insurance.

- Tax and spend to achieve

- Credit against tax if states set up unemployment insurance

- Objection by tax payer, coercion of the states

- States don?t care.


-states can regulate for the general welfare

- 21 yr. old drinking law, or else withold federal highway funds to the states.

- Conditioned on highway spending

- A state, if it?s a non-recipient of federal money, will get the money if it wins the case.

- The restriction has to be reasonable, related to the purpose of spending.

- Coercion of the states v. compulsion, couldn?t force states to do something forbidden under the constitution.

- spending and taxing are independent activities, not limited to enumerated grants of authority, as long as its for the general welfare.


- old age pensions, tax on employees.

- General welfare is not old people

- Whatever Congress says is the general welfare is the general welfare.


- migratory bird treaty act.

- Valuable as pest control

- 2/3 of the senate have to ratify the treaty

- Article 2, treaty made by the president.

- Have to pass an act, where does congress get the authority?

- Implied to make treaty effective

- Necessary and proper to make treaty effective

- Any limitation not specifically on the treaty is under the authorityof the U.S.

- A treaty could be violative of the constitution.

Immunities: 1) should the states be immune from federal taxation and regulation. NO, as long as the states ability to govern is not destroyed.

2.) should the federal gov?t be immune from state taxation and regulation? YES

- the state can?t tax the fed. Gov?t

- can?t impose regulations either, because fed. Gov?t supreme to the states

- federal actions can be subject to state regulations

- fed., state, and local don?t tax municipal bonds

- congress can tax bearer bonds.

- Federal regulation of the states v. 10th amend. State sovereignty.


- regulate wages and hours of state schools and hospitals

- effects interstate commerce


- 10th Amend and state sovereignty overruled MARLAND.


- wages and hours of bus drivers

- overruled National League of Cities

- no more distinction between governmental and non-governmental functions.

- The only protection for the states from federal regulations is the political process.

***Congress cannot regulate for the general welfare, but it can tax and spend for the general welfare.

N.Y. v. U.S.

- waste disposal. States aren?t doing enough.

- Congress wants to direct producers on regulation of waste

- Congress could pass laws reaching the individual states regarding waste disposal

- Spending quo vast amount of federal money, paying the states to legislate.

- N.Y. said beyond the authority of congress to do this, outside of the commerce clause and outside of regulatory powers.

- Not enumerated, prohibited by the 10th amend.

- just take title to the states, responsibility of the state, increase costs for the states

- Telling the states how to spend money invades their sovereignty.

- States can?t waive their sovereignty, it is in trust with the people.


- fired because of old age, mandatory retirement age.

- Business affects interstate commerce

- Also applies to state employees, exempt are state policy makers, such as judges.


- Brady Bill, congress told states law enforcement must run background checks on people purchasing guns.

- Sheriff said no, citing the 10th amend., controlling a state policy maker

- Congress didn?t have to pay for it, the state does.

- Makes the state officers puppets of Congress

- Congress can?t enforce federal law, seperation of powers, President v. congress

- President enforces federal law, not congress. The president is being cut out

- One branch will have too much authority. The court protects the states? rights.

Term Limits:

- Limiting the term of federal legislators and representatives.


-incumbancy insures re-election

- power from seniority- chairman

- more money for the state

- disadvantage to the people

- interests change from representing the public to reassuring the re-election

- is it constitutional for a state to limit this term?

- Art. I sec. 5 of constitution does not permit it.

- State usurping federal power. Ct. said congress clearly does not have the power, its not enumerated.

- The power is then reserved to the state. No, because the states never had that right before the constitution. No pre-existing right, never reserved. These politicians didn?t exist.

- Neither can qualifications of politicians be added to term limits.

- Dissent the people have the power, the states can add it through them.

- There?s a constitutional amendment limiting the president?s term


- the constitution is designed to create conflic for a stronger gov?t. (checks and balances)

- there is an overlap in power

- an increase in one branch is at the expense of another branch

a. the power of the President- Chief Law Enforcement Officer

i. appoints secrets service, FBI, DEA, head of the agencies.

ii. Art. II ? 1 says ?herein granted?- this means he has power outside of this article.

iii. Scope of presidential varied w/ those in power.

iv. He orders people in his branch

v. Legislates to some extent

vi. Executive agencies pass laws

vii. Congress gives authority to the agencies to pass regulations

viii. President is the stronges legislator in our system by veto power.

Senate: 16 votes

House: 73 votes

***The court is the referee between the president and Congress.


- the secretary of commerce seized the nation?s steel mills

- the korean conflict led to a strike in the steel industry.

- Need the products for war tanks

- Pres. Truman, in order to prevent a strike, siezed it.

- How does the production continue?

- Ordered the sec. of commerce to do it, the ct. said no.

- Pres. is the Chief executive, the law making powers belong to congress.

- The only form of legislation is in the form of executive orders.

- Commander-In-chief of the armed forces, this is not a military decision,

- Private property is domestic, war is foreign.

- Congress?s job is to settle labor disputes through the commerce clause to keep the supplies going to the troops.

- Pres. asked for that power before, and congress didn?t give it.

- Limitation on the power of the pres.

- Categorize Executive power according to degrees.

STRONGEST- when with the expressed or implied consent of Congress

Medium ? when the pres. is acting and congress is silent

weakest – when the pres. is acting and congress has said no.


- revolution in Iran, they siezed U.S. property, invaded our embassy and took hostages.

- Carter suspended claims in american courts, to let hostages free.

- He had no authority

- It was an executive order, congress agreed.


- Line Item veto Act, power of the pres. from the Presentment Clause Art. 1 ? 6 (2) p.1442

- ?it? the whole bill, not part of it, sign ?it? or ?return it?

- Congress can give the president discretion to spend.

- If the law is passed and signed, congress has the authority to spend or not spend.

- This law gives him the right to change the law with his own pen

- Look at the language of the const.

- N.Y. was denied $ 2.6 billion from congress (spending power)

- It had standing, non-recipient, could win the money

- It wasn?t vetoed, it was cancelled.

- He signed it first, then cancelled it because congress gave him the power to cancel certain spending powers

A. the power of the President to appoint officers, Art. II ? 2 (2)

-the power to appoint is not absolute, conditioned by 2/3 of the senators present concur, combination of the two branches.

B. the president?s power of removal of officers (impeachment)

- the ct. said the power to appoint is together w/ the senate, but he has the power to remove all by himself.

- Does the pres. have to show cause for removal? NO, no formalities, just removal.


- congress creates the cabinet positions, Federal Trade Commission

- president appoints the members

- they shall serve for a term of years

- ct. said it is not in the power of the president to remove the Federal Trade Commissioner without reasonable cause.

Independent Agency: not purely or solely executive

- Commissioner = quasi-legislative and quasi-judicial power, along with executive power

- Therefore reasonable cause is needed to remove.

- Hearings and regulations have the force of law, independent of the executive

*president can remove only executive officers w/out cause.


- Federal Election Commission, commissioners appointed by Senate & House

- Commisioners are going to enforce the law, executive officers.

- All appointed by the president in the appointment clause


- Congress? power to tax and spend

- Created comptroller general by balanced budget and emergency deficit act of 1985

- Non-recipient of federal spending

- Comptroller general is an executive officer

- Congress says his power comes from congress, therefore they could remove him

- Congress can?t have the power to remove, they only have legislative power, not executive

- Only the president can remove


- Ethics in gov?t Act, a better way to investigate high ranking officers.

- Special division of the court of Appeals of the district of Columbia appointed independent counsel to investigate, Morrison.

- Olsen was the asst. attorney general tried for perjury

- The atty. General cannot remove the independent counsel w/out ?good cause?

- The ability to remove the independent counsel is not essential

- The independent cousel is solely an executive office, it enforces the law.

- It doesn?t offend the separation of powers

- Scalia dissents: purely executive at the pleasure of the president

- Taking away executive power in the constitution

- The independent counsel has no other cases, the purpose is to weaken the power of the president, since he cannot remove him

- Strengthens congress?s power


- Congress passed a sentence reform act

- Permissible sentence- guidelines by congress, lack of uniformity among the sentences

- Federal guidelines binding on federal judges

- Defendant says this is unconstitutional , congress should set the guidelines, not an executive or judicial branch

- Majority says it does not offend the constitution


- violates the seperation of powers

- congress trying to veto a law already passed

- it is the power of the executive to veto

***Source of Congressional Power ? Congress?s power to deal with foreign afairs not spelled out in the constitution, it is implied.

C. Art. II ? 3 ? the president decides what gov?t of nations that we recognize by receiving ambassadors

- then congress must have a residue of that power, implied.

*In the absence of a declaration of war, the president, as Commander-In-Chief, can send troops

- congress can cut off war spending if they don?t agree with the president.

- War Power Resolution Act- take the troops out in 60 days, is this act constitutional.

- A vietnam war soldier or his family would have standing to object

- The sup. Ct. said it?s a political question

- No judicial manageable standards

Executive Privilege: executive and judiciary in conflict, judiciary decides in favor of the judiciary.


-tapes and documents relating to the president by the president

- subpoenas for the tapes

- Nixon claims absolute privilege

- Protecting office of the president from other branches and the prosecutor (national security)

- Art. II implies the privilege, legally protected right not to give evidence.

- Executive privilege not in the constitution

- For information received by the president from his advisors, inherent in the branch

- The privilege is needed or else:

i. can?t protect the advisors when they speak the truth. You have to ensure the officers that they can trust you and that you will not reveal that info. or their identity.

ii. separation of powers, its his own business, they can?t stick their nose in to find out what?s going on

- the court says there is an executive privilege found in a.) Art. II and b.) the separation of powers

- Nixon described the privilege as absolute, only when military concerns, diplomatic concerns, and/ or national security is concerned.

- Not an absolute privilege, it is conditional

- 6th amend. Importance of a trial

- District court was to listen to the tapes in private.

- Balance the injury to the presidency alongside the need to discover the truth

- This is the first time the judiciary officially recognized executive privilege

- The extent of the privilege is unknown

- Privilege is absolute if the matter involves national security, the military, or diplomacy.


- the president?s papers, materials, and recordings

- law enacted by congress said only Nixon?s materials

- could only get privat and not of general interest returned to Nixon

- is there a privilege? Is the privilege for a particular occupant or for the general office?

- A bill of attainder is mentioned twice in the constitution

- Congress nor the states shall issue a bill of attainder

- Legislative punishment of an individual or readily identifiable group of individuals without a judicial trial.

- Ct. said no, they don?t trust him as the custodian, not a punishment

- Its done for the future, not the past acts

- Preventing not punishment (still is a bill of attainder) contrary to a prior decision

- Because he resigned under a cloud, a class of one.

Executive Privilege and Immunity:


- can the president be subject to a civil trial, not regarding his presidential activity?

- Yes , cannot stop the statute of limitations, it still runs and suit has to be brought

- If the suit regards his presidential actions, then he has immunity