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CAN THE SUPREME COURT HEAR THE CASE?
1. Justicability : jurisdiction only for cases and controversies (Art. III, § 2)
1..a Political question? Look for issues with the relationship b/t the Judiciary and other branches
1..b Question is about deference , not about obligation F 0 E 0Spectrum, not binary choice
1..c Court should have the power to review cases where the Senate removed an impeached
officer summarily without a hearing, or through some arbitrary process, such as "a cointoss" (Souter concurrence: Nixon v. United States )
1..d Elements ( Baker v. Carr )
1..d..1 Textual commitment: determination of an issue is clearly committed to another
branch
1..d..1..a Ex. Foreign affairs and executive war powers (Brennan from Baker )
1..d..2 Lack of standards: lack of judicially discoverable and manageable standards for
resolving the issue
1..d..3 Policy determination: impossible to decide the case w/o an initial policy
determination
1..d..4 Avoid disrespect: impossible to undertake independent resolution w/o showing a
lack of due respect for other branches
1..d..5 Unique adherence: unusual need for unquestioning adherence to a political
decision already made
1..d..6 Avoid embarrassment
1..e Advisory opinion? ( Muskrat )
1..d..7 Declaratory judgment?
1..d..7..1 Actual dispute (case in controversy) b/t adverse parties?
1..d..7..2 Some possibility of a future need for relief as among the parties? F 0 E 0DJ allowed
1..d..8 Independent and adequate state ground?
1..f Ripeness?
1..f..i Injury wholly speculative?
1..g Mootness?
1..d..7..3 Parties have a concrete and meaningful stake?
1..d..7..4 Collateral consequences?
1..h Standing? ( Allen v. Wright )
1..h..i Non-individualized harm?
1..h..ii Third parties’ rights?
1..h..iii Target or beneficiary of gov’t regulation? ( Allen )
1..h..iv Does plaintiff have:
1..h..iv..1 An injury in fact?
1..h..iv..1..a Concrete and particularized?
1..h..iv..1..b Actual or imminent? (not conjectural or hypothetical? – Lujan v.
Def. of Wildlife )
1..h..iv..2 A causal relationship b/t the injury and the challenged conduct?
1..h..iv..2..a Injury has not resulted from the independent action of some 3d
party not before the court
1..h..iv..3 A likelihood that the injury will be redressed by a favorable decision?
2. Jurisdiction : (Art. III, § 2, cl. 2)
1..d..9 Original Jurisdiction
1..d..9..i Ambassadors/ministers/counsels and cases where a state is a party
1..d..10 Appellate Jurisdiction
1..d..10..i Decision relied on federal law?
1..d..10..i..1 Independent and adequate state ground?
1..d..10..ii Has Congress limited appellate jurisdiction? (Exceptions Clause)
1..d..10..ii..1 Was the limitation neutral? Or did Congress decide the merits of the
case under the guise of limiting jurisdiction?
1..d..10..ii..2 Cannot consider Congress’s motive ( McCardle )
1..d..10..iii Has Congress stripped all federal courts of both original and appellate
jurisdiction?
1..d..10..iii..1 Traditional View: Cong. has plenary auth. over Fed. Court jurisdiction
1..d..10..iii..2 Court has avoided the question and prefers not to answer it
1..d..10..iii..3 Court’s role in the constitutional system
1..d..10..iii..3..a Arguments for constitutionality:
1..d..10..iii..3..a..i Exceptions Clause: “supreme Court shall have
appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
1..d..10..iii..3..a..ii Congress had the power to create lower federal
courts (Art. III, §1), can probably strip them of jurisdiction
1..d..10..iii..3..a..ii..1 McCardle
1..d..10..iii..3..a..ii..2 Can limit lower federal court
jurisdiction -federal Q & diversity
1..d..10..iii..3..a..iii Democratic values
1..d..10..iii..3..b Arguments against constitutionality:
1..d..10..iii..3..a..ii..3 Court, not Congress decides ( Marbury v.
Madison )
1..d..10..iii..3..a..ii..4 SCOTUS’s interpretation of the Constitution is
supreme law ( Cooper )
1..d..10..iii..3..a..ii..5 “Judicial power shall extend to all cases arising
under the Constitution” – need to have some forum/due process
1..d..10..iii..3..a..ii..5..1 McCardle – still had original
jurisdiction from Yerger
1..d..10..iii..3..a..ii..5..2 “all arising under” – text argument for
requiring a federal forum available for claims arising under federal law
1..d..10..iii..3..a..ii..6 Inconsistent with separation of powers (would
only have 2 branches)
1..d..10..iii..3..a..ii..7 Lead to a lack of uniformity of federal law
1..d..10..iii..3..a..ii..8 Anti-democratic values
SCOPE OF FEDERAL POWERS
1. Limitations on federal power
1..a Within an enumerated power?
1..b Violation of individual rights? (limitations in Constitution?)
2. Rational basis review: Necessary and Proper Clause ( McCullough v. Maryland )
2..a Congress employed a means which is not prohibited by the Constitution?
2..b Rationally related to the objectives that are themselves within constitutionally-enumerated
powers?
1..c Kahringer : so long as the tax raises money, no need to determine if it is a penalty,
UNLESS there are provisions extraneous to any tax need
1..d Primary purpose to use a tax as a penalty for non-compliance? F 0 E 0UNCONSTITUTIONAL ( Child
Labor )
1..d..i Specified conditions so that the tax does not apply unless the taxpayer violates those
conditions?
POWER TO SPEND : Art. I, § 8, cl. 1
1..d..i..1 Congress can condition the receipt of federal funds on conditions, if: ( South Dakota v. Dole )
1..d..i..1..a Must be in pursuit of the general welfare
1..d..i..1..b Substantially defer to Congress’s judgment
1..d..i..1..c Clear statement rule: no ambiguous conditions; clear statement of the consequences of non-
compliance
1..d..i..1..d Germaneness: conditions related to the purpose of the spending program
1..d..i..1..e Ensure that states can adequately enforce the provisions: agency implementing the provision
would be the one getting the funds
1..d..i..1..e..i South Dakota dissent (O’Connor): stricter test: conditions can only say how the
money will be spent, but cannot give money with conditions unrelated to how the money should be spent
1..d..i..1..f No independent constitutional bar
1..d..i..1..g No coercion: must be a meaningful choice
1..d..i..1..g..i Court has never said what is coercion and what is inducement
1..d..i..1..g..i..1 Butler dissent: threat of loss, not hope of gain, is coercive
1..d..i..1..h NOT a balancing test F 0 E 0if any ONE factor is not met, then the statute is unconstitutional!
STATE IMMUNITY FROM FEDERAL REGULATION: cannot force a state to implement federal law, but can force a state to comply with federal law
1. Taxes
1..a Tax on the state substantially interfere with the state’s performance of its basic gov’t functions?
1..b Tax on schools/parks; NOT a generally applicable tax (tax on planes, even state-owned)
1..c State tax on an activity that appears connected to the federal gov’t: state taxes a private party that in a way
increases federal gov’t costs (ex. contractor)
1..c..i No violation as long as the legal incidence of the tax is not on the federal gov’t
2. Regulations
1..c..ii Regulation valid if applied to a private party? F 0 E 0VALID as applied to a state (compliance)
( Garcia )
1..c..iii Federal gov’t trying to compel a state to enact or enforce a particular type of law or regulate in a
certain manner? F 0 E 0UNCONSTITUTIONAL ( New York v. United States )
1..c..iv Federal gov’t trying to compel state/local executive officials to perform federally-specified
administrative tasks? F 0 E 0UNCONSTITUTIONAL ( Printz )
1..c..iv..i NO de minimus exceptions: not even ministerial, easy-to-perform, temporary tasks
(dicta)
LIMITS ON STATES’S POWERS
1. States’ Powers to Regulate the Federal Government
1..a No power to regulate federal gov’t unless Constitution expressly allows it ( US Term Limits )
1..b Art.I, §10 limits on states; CC; Preemptive Clause; Privileges and Immunities Clause; 1A
2. Preemption : General presumption AGAINST preemption!
2..a Express: provision in statute prohibiting states from taking a certain action F 0 E 0SUPREMACY CLAUSE
2..b Implied: Specific inquiry as to the legislative intent of each statute
2..b..i Conflict: whether federal standard sets the only permissible regulation or the minimum
standard, where states can set higher standards ( Silkwood )
2..b..i..1 Compliance with both federal and state statute is a physical impossibility, OR
2..b..i..2 State law stands as an obstacle of the accomplishment and execution of the full
purposes and objectives of Congress
2..b..ii Field: Congress chooses to regulate a subject exclusively by federal law
2..b..ii..1 Scheme deals with federal regulations (ex. immigration)
2..b..ii..2 Need for uniformity is strong
2..b..ii..3 Congress has created such a complex set of litigation in the area (agency/
licensing)
2..b..ii..4 Legislation in the field where states traditionally occupied? F 0 E 0assume the historic
power of the states is not superseded, unless that was the clear and manifest purpose of Congress ( Medtronic v. Lohr )
3. Dormant Commerce Clause : not an absolute bar to state action, just the default rule
3..a Default rule: in the absence of a comment by Congress, courts will presume that Congress would not
allow a discriminatory state law
3..b State’s regulation affecting interstate commerce must:
3..b..i Pursue a legitimate state end
3..b..i..1 Health, safety, general welfare (police power) ( Willson v. Black Bird Creek
Marsh )
3..b..i..2 NOT trying to promote residents’ economic interests
3..b..ii Be rationally related to that legitimate end
3..b..ii..1 Not required to be the best way of achieving that end
3..b..ii..2 Not required to be the way that least affects interstate commerce
3..b..iii State interest > burden on interstate commerce
3..b..iii..1 Burden imposed by the state on interstate commerce, and any discrimination
against interstate commerce, must be outweighed by the state’s interest in enforcing that regulation
3..c Discriminatory State Legislation : Presumptively UNCONSTITUTIONAL; close to strict scrutiny!
3..c..i Facial: laws on their face discriminate against out-of-state interests or interstate
commerce
3..c..i..1 Will be upheld ONLY if there is a legitimate local purpose that could not have
been achieved through non-discriminatory means F 0 E 0otherwise, PER SE UNCONSTITUTIONAL ( Dean Milk Co. v. City of Madison )
3..c..i..2 Purpose of the state is irrelevant ( City of Philadelphia v. New Jersey )
3..c..i..3 Look for: rules restricting imports/exports
3..c..ii Purpose/Effect: statute on its face does not discriminate, effect is to do so
3..c..ii..1 Purpose was to discriminate F 0 E 0Look to legislature’s intent
3..c..ii..2 Effect of the statute was clearly discriminatory
3..d Burden on Interstate Commerce : Presumptively CONSTITUTIONAL
3..d..i Burden on interstate commerce/out-of-state interests excessive in relation to legitimate
local interests? ( Southern Pacific Co. v. State of AZ/Kassel – Pike balancing test)
3..d..ii Is there a conflict of laws b/t 2 or more states?
3..d..ii..1 look for transportation/trucking issues
3..e Market Participant Exception :
3..b..i..3 State gov’t acting like a private business (buying/selling goods on the market)?
3..b..i..4 LIMITATION: state CANNOT impose burdens on commerce beyond the market in
which it is a participant ( South Central Timber Development v. Wunnicke )
3..b..i..4..1 Are the conditions imposed downstream from the actual buying and
selling?
3..f Potential Congressional Consent Exception
3..b..ii..3 Can authorize states to pass legislation that would otherwise violate the DCC
( Prudential )
3..b..ii..3..1 Independent constitutional bar? Violates 14A? ( MetroLife Insurance v.
Ward )
3..b..ii..4 Congress can OVERTURN SCOTUS’s interpretation of the Constitution
FEDERAL EXECUTIVE POWER : Art. II, § 2, 3
1. Major issue: “inherent authority?”
1..a “Vested” NOT “granted” the executive Power (Art. II, § 1)
2. Domestic Affairs: inherent authority? No.
4. NO immunity from criminal prosecution
4..a Impeachment provision may bar any criminal prosecution until President has been removed from office
4..b Criminal prosecution of other executive officials allowed (VP Agnew)
LEGISLATIVE PROCESS
1. Delegation of Legislative Power
1..a Non-delegation doctrine: Congress impermissibly delegates legislative power only when it fails to
provide an intelligible principle to guide the agency’s/executive official’s exercise of discretion
1..b Factors without guidance about how to weigh them?
1..c Court has only invalidated 2 statutes; upholds sweeping delegations of authority
1..d If there is an intelligible principle, there is not a delegation of legislative power
( Whitman -Scalia)
2. Implications of Bicameralism and Presentment
2..a Only ONE way authorized in the Constitution to enact or repeal a bill
2..b All exercises of the legislative power must comply with the requirements of bicameralism and
presentment ( Chadha )
2..b..i Legislative act: has the purpose and effect of altering the legal rights, duties, and relations
of persons outside the legislative branch (e.g., decision to let alien stay, Chadha )
2..c No line-item veto – canceling a provision = repealing a law ( Clinton v. New York )
3. Congressional Control over Executive Officials : Art. II, § 2, cl. 2
3..a Appointment: Congress assigning to itself the power to appoint executive officers? ( Buckley v. Valeo )
3..a..i Principal officer?
3..a..i..1 President selects w/ advice and consent of Senate
3..a..ii Inferior officer?
3..a..ii..1 Appointed by President, heads of agencies, or Judiciary
3..a..ii..1..a Characteristics: ( Morrison v. Olson )
3..a..ii..1..b Subordinate
3..a..ii..1..c Limited duties
3..a..ii..1..d Limited in jurisdiction and tenure
3..a..ii..1..e No ban on inter-branch appointments, but not consistent w/
separation of powers
3..b Congress assigning to executive powers to legislative officials? ( Bowsher v. Synar )
3..b..i Need to categorize the power
3..b..i..1 Does the person have:
3..b..i..1..a Executive powers, AND
3..b..i..1..b Subject to congressional control? (Congress has power to remove?)
3..c Removal: no provision in Constitution
3..c..i Congress cannot reserve to itself the power to remove an executive official ( Myers ,
Bowsher )
3..c..ii Congress may impose limitations on President’s power to remove (just cause)
( Morrison ), UNLESS:
3..c..ii..1 The limitation (removal restriction) impermissibly interferes with President/a
branch carrying out its constitutional duties, AND
3..c..ii..1..a Character of the office
3..c..ii..1..a..i Legislative/judicial powers? F 0 E 0President’s power to
remove can be limited ( Humphrey’s Executor – FTC member only removed with just cause)
3..c..ii..1..a..ii Only executive function? F 0 E 0President can remove w/o
limitations ( Myers – Postmaster)
3..c..ii..2 There is an attempt by Congress to increase its own powers
3..c..ii..2..a Aggrandizement
3..c..ii..2..b Encroachment
3..d Impeachment:
3..d..i Art. I, § 2, cl. 5: House has sole power of impeachment
3..d..ii Art. I, § 3, cl. 6: Senate has sole power to try impeachments
NOTE: Court is not obligated to declare the entire law unconstitutional or one part F 0 E 8Congressional intent
• Allowed to strike one provision ( Bowsher -Blackmun)
• Try to figure out what Congress would have wanted the court to do based on CONTEXT
• Sometimes will try to include a severance provision, usually does not
• Court will not strike down a law on its face if a wide swath of activities are constitutional
Case Functionalist Formalist Youngstown Steel : Formalist majority Functionalist concurrences
Frankfurter: may have inherent authority to act if that is what happened throughout history Jackson: 3 categories: President’s powers fluctuate depending on what Congress does
Black : President’s seizure was unconstitutional b/c it was analogous to lawmaking
Nixon v. Fitzgerald : Formalist majority Functionalist D
White: no reason to depart from the usual rule that absolute immunity attaches to particular functions, not the office F 0 E 0new rule places President above the law
Powell: President has absolute immunity from civil liability for his official acts
Clinton v. Jones : Functionalist majority
Stevens: should consider the likely effect of the court’s decision on the President’s ability to do his job
N/A
INS v. Chadha : Formalist majority Functionalist D
White: Court’s task was to determine whether the legislative veto presented an actual functional threat to the notion of the separation of powers
Berger: Constitution clear on how to enact a law, and any deviation from that form is therefore unconstitutional
Clinton v. New York : Formalist majority Functionalist D
Breyer: President enjoyed the power to strike down small bills at the founding, so he enjoys this power now (no longer feasible to send each small bill to president)
Stevens: no line-item veto b/c the Constitution is clear on the only way to enact or repeal a bill, and that requires bicameralism
Bowsher v. Synar : Formalist majority Functionalist D
White: Congress, not President, responsible for making budgetary decisions, and delegating that authority will not deprive President of any power he would have had
Berger: Congress cannot assign executive powers to legislative officials b/c that would violate SoP
Morrison v. Olson : Functionalist majority Formalist D
Rehnquist: independent counsel provisions are not inconsistent with SoP – Congress not trying to retain power and not unduly limiting executive authority
Scalia: Constitution imposes rigid limits on Congress’s power to limit the President’s control over officials who exercise such powers
Characteristics: should consider practical applications of statutes
Characteristics: President can only exercise authority granted by Congress or the Constitution FOR Logic of constitutional gov’t: flexibility; text has broad terms AGAINST Lack of notice; depends on what 9 people removed from everyday life think; President has too much power
May not give the President the right to respond if the country was suddenly attacked while Congress was in recess Unitary Executive Theory:
• Text: Constitution creates a hierarchical, unified executive department under the direct control of the President.
• Art. II: Vesting clause: “executive power shall be vested in a President”
• Take Care Clause: “President shall take care that the laws be faithfully executed”
• Printz : Scalia/Majority: Constitution vests the executive power in the President F 0 E 0Although the President cannot
administer all federal law, anyone that administers federal law is subject to the authority of the President
• President does not have authority over the governors
• Myers : Taft/Majority: President must have unfettered control over everyone executing the law
• Must not be any congressional limits on the President’s power of removal b/c that is more analogous to
appointment (President) rather than advice and consent (Senate)
• Morrison : Scalia/Dissent: Conduct of a criminal prosecution is an executive power in the independent counsel act
and this act deprives the President of exclusive control over the exercise of that power
