CONSTITUTIONAL LAW I

1. CONGRESSIONAL POWER: Has both enumerated power (Art. I §8) and implied power
(McCulloch), which are derived from the necessary and proper clause (if the end is legitimate, then
the means of achieving the end is up to Congress. Courts shouldn’t second guess Congress’s choice of
“means”) and the Supremacy Clause (the federal law trumps state law, if it’s with the issue is within
federal power).
a. COMMERCE CLAUSE: Art 1 §8 Uniformize interstate commerce (among the states).
Congress can regulate:
i. Anything in the Flow of Commerce (Crossing State lines) – jurisdictional hook - Darby
(regardless of the motives).
1. Commerce of thing derived from harmful production can be regulated by
Congress – NCRB v. Jones.
ii. Channels and instrumentalities of Interstate Commerce (roads, hotels).
1. Definition of the Umbrella Curve (all commercial activity) – Gibbons, which
also established that if Congress opts not to regulate something, the State cannot
do so. Heart of Atlanta (doesn’t matter that the ultimate goal is not related to
Commerce)
iii. Things which in the aggregate regulate Interstate Commerce – Wickard (small
production by itself but in the aggregate could affect IC) – purely local interest can be
regulated by Congress.
1. The thing being regulated is “economic” (Lopez, Morrison – noneconomic
activity cannot be regulated by Congress.
2. The thing being regulated is not economic, but its regulation is necessary to
implement a larger regulatory scheme of things that are economic (Raich)
3. The thing being regulatory is an “activity” (Sebellius)
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iv. 10 Amendment: States have any power not delegated to Congress. Accordingly,
Congress under the Commerce Power, can regulate (1) people within the states (IC); (2)
states themselves (Reno), as a commerce agent, not within their sovereignty.
1. Congress cannot commandeer the State’s legislative process (NY v. U.S.), but
“bribing” is OK (economic incentives).
2. Congress cannot enforce state actors to comply with a federal regulatory
scheme. Printz and Haaland.
b. TAXING POWER: Independent power (does not need to hook to anything else), so Congress
often uses it to achieve indirectly what it can’t directly. The Court has recognized that it has a
regulatory effect. Kahringer.
i. Functional Test – it doesn’t matter how the court labels, what matter is the effect. If it
acts like a tax, it’s a tax. Sebellius.
c. SPENDING POWER: Congress can spend on anything that it wants, limited only by the
requirement that it shall be exercised to provide for the general welfare of the U.S.
i. Prerequisites: (1) cannot require the state to act unconstitutionally; (2) spending must
be for the “general welfare”; (3) condition must be unambiguous; (4) condition must be
related to the spending purpose; (5) cannot create a compulsion. Dole and Sebellius
*Courts analysis usually lie in the last two.
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d. 14 AMENDMENT: “Enforcement Provision” – Section 5. Making federal law enforceable
against state actors when in regards to the protection of the Equal Protection, Due Process
 and Privileges & Immunities Clauses, as long as it is plainly adapted to that end and is
consistent with the Constitution. Morgan.
i. Protection has to be Congruent and Proportional to achieve legislative purpose. City of
Boerne (necessary and proper – McCulloch) and as long as it does not affect private
actors. Morrison.
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e. 11 AMENDMENT: Immunity of the States against federal jurisdiction. Congress can
abrogate (repeal) state sovereign immunity only under the enforcement clause (section 4 of
the 14th amendment), as long as it is done clearly. Fitzpatrick and Seminole Tribe.
i. Covers: (a) Suits in federal courts; (b) applicable to the states, not it’s people; (c)
arising from diversity jurisdiction and federal question jurisdiction; (d) citizens of
different and it’s own state.
ii. Does not Cover: (a) State from being sued in state court by individuals; (b) Federal
government suing for violations of federal laws; (c) suits against state actors for
injunctive relief; (d) Suits against state actor for damages, as long as the state will not
be required to pay; (e) Waiver by the State – consented.
iii. Kimel – established the bullseye test:
1. Strict (Heightened) Scrutiny: For protected classes, such as age, race, and
gender. Must show that the legislation is narrowly and substantially related to
advancing an important government interest.
2. Rational basis review: Nonprotected classes, such as age. Must show its law
was a reasonable way to further a legitimate state interest. Economic reasons.
2. LIMITATION ON STATE POWER: A judicially construed doctrine that constraints the ability of the
states regarding interstate commerce, also known as Dormant Commerce Clause.
a. DORMANT COMMERCE CLAUSE: prohibits states from doing things that affect the
Congressional power to regulate commerce among the states. Protects Congressional power,
even when it’s not acting upon it (may be a choice).
i. Black Letter Law Test: If law is discriminatory in effect or in purpose (or even on it’s
face), the State must show: (1) that it serves a legitimate state interest and; (2) the state
must show it is unable to advance that interest through a less discriminatory means.
Philadelphia v. NJ. The lack of alternative is the most important part of the test.
Maine v. Taylor.
1. A legislation will be considered discriminatory if it is hoarding (wall for out-of-
state). H.P. Hood.
2. A legislation will not be considered discriminatory if it applies equally to in-
staters as out-of-staters. National Pork Producers v. Ross.
ii. Pike Balancing Test: Applicable to legislations that are not discriminatory, but burden
Interstate Commerce. The State must show that the interest that the State seeks
outweighs the burdens on interstate commerce. Bibb v. Navajo.
iii. Exceptions: Where the DCC is not applicable: (1) explicit congressional authorization.
South Central Timber v. Wunnicke; (2) where the state is acting as a Market
Participant. Reeves v. Stake; (3) subject matter exceptions, such as taxes or subsidies.
3. EXECUTIVE POWER: laid out in Art. II of the Constitution: Executive Power vested in the President
(make sure the laws are faithfully executed) and Commander in Chief provision.
a. The American System is composed of Separation of Powers, and each branch of power
performs checks and balances in relation to the others. In order for this to work, some powers
overlap, this is where issues usually arise.
 i. Doctrinal Test to analyze Presidential Authority, laid out by Justice Jackson
concurrence in the Youngstown case:
1. First Category – President acts with express or implied authorization of
Congress.
a. Authority at maximum – pull from both his authority and Congress’s.
2. Second Category– President acts in the absence of congressional grant or denial
of authority.
a. President can only depend on his own power. However, there is a
“Twilight Zone” where both the President and Congress have concurrent
authority. There is no bright line test, should be analyzed on a case by
case basis.
3. Third Category – President takes measures incompatible with the express or
implied will of Congress.
a. Power at its lowest – President can only act where he has exclusive
authority (can only rely on his aggregate of independent powers).
b. COMMANDER IN CHIEF POWER: Power of the President, but the power to declare a
legal status of war is exclusive to Congress.
i. How do Courts grapple these kinds of issues?
1. President acts constitutionally when repelling an actual threat on the country,
especially if there is retroactive approval by Congress. Prize Cases. NOTE:
President CANNOT create a legal status of war whenever it wants. Legal Status
of War brings on other consequences, like habeas corpus rights.
a. Questions the Courts have to Grapple: (1) When is a de facto war also
a legal war? (2) Who decides when the facto war exists? – Political
Questions Doctrine (3) If Congress decides to declare war, what does
that declaration need to look like?
2. The Court is not the branch responsible for deciding if a de facto war is also a
legal war. Mass. V. Laird - Dissent lays out some questions to determine if the
Court should determine such a question = Not in cases involving Individual
Liberty, but ok in property rights.
a. More concentration of power in the hands of the President due to
political accountability.
b. Political Questions Doctrine - The Court is cautious about proffering
biding opinions during this era. Opinions are persuasive but not binding.
Who is the final decider?
c. WAR POWERS RESOLUTION: Congress tris to structure and limit the President’s Power –
determining what he can do without Congressional approval. They argue this is constitutional
under the Necessary and Proper Clause, which allows them to fulfill the power of any of the
branches (clarify the war powers of the president).
i. To introduce American Forces into hostile, one of these must be present:
1. War has been declared by Congress (Ample Powers)
2. There is Specific Statutory Authority (Ample Powers)
3. National Emergency created by an attack on the U.S., its territories, possession
or forces (Power to Respond).
ii. Created Obligations to the President if he puts troops on the field:
1. Has to consult with the president of the committee
 2. Report within 48 hours of engaging troops
a. Triggers Review by Congress – if not approved troops must be
disengaged within 60 days extendable to more 30 days.
b. If Congress fail to act – President also has to disengage.
iii. Nixon Vetoed the Resolution on 2 grounds:
1. Congress is infringing on a exclusive power of the President (Commander in
Chief)
2. Congress cannot act through inaction (There should be an express manifestation
of intent).
3. NOTE: A branch can act through a constitutionally granted power, but
unconstitutionally limit the power of another branch.
iv. Determining when an emergency requires a response and the level of force required is a
power of the executive and consequently nonjusticiable. Campbell v. Clinton.
d. HABEAS CORPUS: The government cannot hold you without giving you the right to appear
in a court of law and challenge your detention – a suit forcing the government to explain the
reasons for enforcement. Article I, Section 9.2 of the Federal Constitution.
i. Presumptive Status: There is nothing in the constitution explicitly giving the right to
everyone. It is just assumed as the default right.
ii. Suspension Clause: Congress has the power to suspend Habeas Corpus right when in
cases of rebellion or invasion, the public safety may require it.
1. Who can Suspend? There is an understanding that the President needs some
kind of Congressional Authority.
2. When can it be Suspended? In cases of emergency requires (rebellion or
invasion) AND the courts are closed. Ex Parte Milligan.
3. What are the Consequences of the Suspension? May not achieve some
situations – areas that are not in conflict and does not entail the government to
try a civilian to a Military Court. Ex Parte Milligan.
4. Who has the right to question the right to question their imprisonment in
case of suspension?
a. Citizens in non-conflict areas. Ex Parte Milligan.
b. Aliens in American Soil. Eisentrager. Guantanamo Bay.
c. Soldiers not entitled HC due to the Genova Pact Rights (Prisoners of
War)
d. Spies – not entitled to HC due to the Treason Clause. Ex Parte Quirim.
e. FOREIGN AFFAIRS: refers to how the government acts in foreign affairs in non-war
settings. The president takes a primary role – he has the authority to initiate treaties, nominate
ambassadors, and other public ministers, and receive them from foreign countries.
i. The Constitutional basis for Foreign Affairs is the inherent understanding that it is a
power of the federal government (was never a power of the States) that was invested
in the President (final decider in Foreign Affairs). Curtiss-Wright.
1. The President is the Representative of the Nation
2. Caution in Secrecy Matters
3. One Voice to Act Quickly
ii. The Reception Clause creates a “recognition power” for the President to recognize or
not the sovereignty of a nation (An exclusive power that Congress cannot interfere).
Zivotofsky.
f. EXECUTIVE PRIVILEGES AND IMMUNITIES: refers to the unenumerated power of the
president to not be subject to judicial process in certain types of situations, derived from the
Separation of Powers Principle (the president gets to do his job without the interference of the
other branches).
i. Executive Privilege: Protection from sharing documents (subpoenas) – broader
protection.
 1. There is no absolute privilege for all president’s communications, but only if it’s
directly related to an official act. It is also easier to have access to documents
through criminal proceedings due to state interest involved – and since not
everyone can file such a suit there is no worry about taking up his time. US v.
Nixon.
2. Balanced Test Approach for requests of unofficial documents during the time
he is president for legislative purposes: Trump v. Mazars
a. The court must carefully asses if the legislative purpose warrants
involving the President
b. Subpoena should be no “broader than reasonably necessary” to support
the congressional legislative objective
c. Court must be “attentive” to the nature of evidence offered by Congress
– purpose and need. Should be as detailed as possible.
d. The Court must consider the burden imposed on the President
e. Not an exhaustive list.
ii. Executive Immunity: Immunity from lawsuit – protection against prosecution per se.
1. The President has absolute immunity against damages in civil cases for official
acts because such suits would directly interfere with the president’s job. Nixon
v. Fitzgerald.
2. President’s Immunity does not protect him from unofficial acts, there is no
temporary suspension while he is in Office. Clinton v. Jones.
a. Some of the reasons to give the president immunity: are secrets candid
conversations, alternative checks, judgment calls, time, harassment, etc.
3. It does not protect him from criminal prosecution, including state prosecution.
Trump v. Vance.

4. JUDICIAL REVIEW: The judicial power is vested in the Supreme Court and the inferior courts that
Congress may create according to Art. III of the Federal Constitution. The same constitutional text also
establishes the power of some of the jurisdictions of the SC, such as diversity, arising out of federal
law, affecting public ministers and ambassadors.
 a. POWER TO DECLARE UNCONSTITUTIONALITY: refers to the ability of the Supreme
Court as the final voice, to declare the actions of other branches unconstitutional because it
is in direct conflict with the Constitution, which is the Supreme Law of the Land. Marbury v.
Madison.
i. The Supreme Court is within the system of checks and balances. They are not just
checked, they are also checked – possible through political accountability: Justices are
appointed by the President and confirmed by the Senate and, manipulation of
jurisdictions (creation and extinction).
1. Under Section 1 of Art. III of the Constitution Congress can control the
structure of the federal courts (can eliminate and create circuits). The
protection of life tenure runs with the individuality of the judge not the court per
se. Stuart v. Laird.
a. Congress has appellate jurisdiction with as exceptions that Congress
may create.
ii. Reasons why the Supreme Court is able to declare unconstitutionality: Marbury v.
Madison.
1. Supremacy Clause – The constitution is the Supreme Law of the Land
2. Written Constitution – makes it explicit how the government operates
3. Members of the branches take oaths to uphold the constitution
4. The nature of the Judicial Power is to interpret and determine what the law
actually means
iii. Congress is not allowed to extend the original jurisdiction of the Supreme Court –
according to Section 2 of Art. III of the Constitution, it is limited to cases involving
ambassadors and other public ministers. Marbury v. Madison.
iv. State officials and state legislatures must comply with orders of the United States
Supreme Court based on its interpretation of the United States Constitution. The
Supreme Court has final authority in interpreting “what the law is”. Cooper v. Aaron.
b. SUPREME COURT’S APPELLATE POWER OVER STATE LAWSUITS: State Suits can
be appealed to the SC, if it refers to a violation of Federal Law, in order to have uniformity of
application of federal law within the country. Martin v. Hunter’s Leese.
i. However, the Supreme Court will not grant grant cert to a State Court’s decision, if it
clearly stated that the decision is based on Adequate and Independent state grounds.
If it refers to a problem of the state’s law, the Supreme Court should defer to the
interpretation of that State’s Supreme Court. Michigan v. Long.
c. RESTRICTION OF THE COURT’S POWER BY CONGRESS:
i. Possible Scenarios: McCardle.
1. (1) Congress made no law, the default might be Court can exercise all
constitutionally given jurisdiction
2. (2) Congress grants jurisdiction of some of the things Art. III but left others out
(dollar limit on diversity jurisdiction), which may imply what is not given is
denied.
3. (3) Congress affirmatively strips a specific type of jurisdiction – will be
honored by the Courts, due to the exceptions clause in Art. III.
a. However, Congress cannot strip power from the Court in an
unconstitutional way, especially in regard to the Separation of Power
Principle – Congress cannot direct how the Court will decide cases. U.S.
v. Klein
d. MODERN PROBLEMS: if a government regulation restricts conduct protected by the plain
text of the Second Amendment, the government must justify the regulation by showing that the
regulation is analogous to gun laws that existed when the Second and Fourteenth Amendments
were ratified. New York State Rifle & Pistol Association v. Bruen.
5. FUNDAMENTAL RIGHTS AND DUE PROCESS:
a. INCORPORATION DOCTRINE: Originally the Bill of Rights only constrained the Federal
government, this was because when it was incorporated, most states already had their own
individual Bill of Rights. This scenario changed through the enactment of the 14th Amendment
– which applied some restrictions to State governments.
i. There are two different types of citizenship: American and State, they are different
and exclusive (State citizenship rights are not protected by Privileges and Immunities of
American Citizenship). However, some federal rights may be protected against states
through the substantive due process provision of the 14th Amendment.
Slaughterhouse Cases.
1. The Due Process Clause protects against actions that “offend some principle of
justice so rooted in the traditions and conscience of our people as to be ranked
fundamental”. Brown v. Mississippi.
2. Substantive Due Process stipulates that the Government should give sufficient
reason to deprive a citizen of a fundamental right.
b. DETERMINING A FUNDAMENTAL RIGHT:
i. A fundamental right is an inherent right directly related to a free government, not
necessarily included in the Bill of Rights. Twining v. New Jersey (Right against self-
incrimination not included).
ii. Fundamental Rights are those that are considered essential by society as essential for
democracy. Brown v. Mississippi.
iii. Economic Rights such as liberty of contract were originally protected as fundamental
rights. The government could only restrict such rights if it referred to the protection of
their citizens in a specified, not general manner (only inherent dangerous activities).
But that is not the case anymore. Lochner v. New York. Not Applicable Anymore.
iv. Fundamental Rights are those protected by civil liberties, intimately related to the right
of choice (free will), and governmental restrictions upon those rights are subject to
strict scrutiny. Meyer v. Nebraska.
1. Unless a state can show a reasonable relation between legislation and a
legitimate state objective, the state may not curtail its citizens from fundamental
rights such as the right to choose private education. Pierce.
v. Fundamental Rights are protected by robust (usually restricted) judicial review,
while other intrusions on liberties are protected by less robust (usually rational basis)
review.
vi. Fundamental Rights are those protected by personal privacy and autonomy rights
protected under Due Process.
c. ZONE OF PRIVACY:
i. Griswald through its majority and concurrences establishes 3 distinct ways to identify a
fundamental right:
1. Pnemuring Reasoning – Justice Douglas:
a. The Bill of Rights created a penumbra of Zone of Privacy rights. A
generalized concern of the legislators – personal life.
2. 9th Amendment reasoning – Justice Goldberg:
a. This constitutional text gives courts the authority to protect
untextualized texts.
3. Liberty and Trust though Due Process – Justice Harlan:
a. Fundamental Rights are those implicit in the concept of ordered society
ii. The State can only infringe in a fundamental right if it is protecting a compelling state
interest. Roe v. Wade.
d. SUMMARY:
i. FR are those “so deeply rooted in our history and traditions” or “fundamental to our
concept or constitutionally ordered liberty”. Meaning?
1. Traditions we continue and those we leave behind?
2. A “living” tradition of protecting fundamental liberties?
3. Essential to the orderly pursuit of happiness by free men?
4. Historic facts about practices specifically defined?
ii. FR and standards of review:
1. Strict Scrutiny review
a. Used when evaluating intrusions on most fundamental rights
b. Requires a narrowly tailored law advancing a compelling state interest.
c. Other forms of “heightened” review, like “intermediate” or “undue”
burden review, are sometime used
2. Rational Basis review
a. Permits laws reasonably related to a legitimate state interest
b. Used for economic rights, and CJ Rehnquist's preferred approach
3. Proportionality Review (preferred by Souter)
a. Does not rigidly define tiers of review, but more of a sliding scale
b. Evaluate the degree of intrusion relative to the importance of the
interest.