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Constitutional Law

General Types of Arguments

Structure of Social Policy Mix of All of

Textual Historical the And/Or the Above
Arguments Arguments Constitution Consequences (esp. history
(broadly) of Decision and text)

Words and Framers Mix of Other Parts of Broad
Narrow important to
placement Intent Opinion Constitution

Specific Natural
Intent Law
At time
of Gov‟t

Judicial Review
& Marshall’s Opinion in
Marbury v. Madison

Constitution is
Court’s Role in supreme law of
Interpreting the land and SCOTUS
Constitution is in charge of
interpreting Political powers, actions
respect the nation & not ind
Political & Discretionary Acts rights – conscience guides

Review of Directed to perform certain

Limits &
EXECUTIVE & Non-Discretionary acts, individual rights,
LEGISLATIVE officer of the law

Rights of Individuals

Beginning of
Political Question


Judges take an
Appellate review of Supremacy Clause
oath to the
decisions arising Issues “especially – laws are made in
Constitution &
under the for the courts” pursuance of the
must uphold
Constitution Constitution
(hence review)
Judiciability Doctrine
Article III – “Cases & Controversies”
Linked to Desirability of Judicial Review
Broad & Narrow View – Policy Decision
“Personal injury fairly traceable to the D‟s allegedly
unlawful conduct and redressed by requested relief”
Actual Dispute
between Adverse
Must Bring
Necessary Some
“Real & not
Change Injury In Fact Causation Redressabiltiy
Hayburn Plout (a) distinct &
Washington Fairly traceable to the
Case Case: palpable, (b) not Whether ruling would
Question to action of D, generally
No overturn abstract or bind D and have an
No override Justices: measures Ps stake in
by C of a hypothetical, (c) effect for P
by Sec. of Refused to
consider the outcome
personally injured
Def of a answer b/c final
Supreme advisory and judgment Lyons: Mass v. EPA: Lujan: Access to
not (yes to Failure to show Congress giving Failure to
Court power to create IIF
information was
decision necessary prospective the possible – weight of report &
purchase airline enough to meet
tickets… whether standard
& in future injury whether concrete
litigation) (D: Marshall) injury is clear imminent enough Richard:
of a threat Actual payment of
child support not

Considered Mass v. EPA:

Third party
together generally
Triggers for
Standing Problems

Generalized Grievance: Third Party Actor: Separation of

-Only 1 need standing
Gov‟t failing to follow the law and That gov‟t is failing to regulate some 3rd party - q‟s about Problems:
-State surrender of rights
bringing suit to do so (injury in fact) causation & redressability
(Allen v. Wright – IRS failure on tax exemptions for racially Court not having
segregated schools; Lujan: failure of Sec of Interior on the ability to
endangered species) determine law,
concerns about
Tied to Const.
Often occur Ripeness
(most together As a whole, the Final decision would
(like IIF)
flexible) question is incapable of lead to a political
judicial review outcome
A. IV, Sec. 4 = (Both sides point
Guaranty Clause = back to Marshall‟s
Concrete, certain, and ripe for review – normally need always non-justiciable Opinion in MvM)
violation; sometimes just never enforced or too
hypothetical – (a) probability that event will occur (b)
Rendering a hardship to parties if denied, (c) fitness of record to Eval through
decision is no determine legal issues presented
longer possible or
purposeful, or Baker Factors
would be hypo
Pre-Enforcement Review of
Statute or Regulation Lack of judicially Embarrassment
(Abbott Labs) Textually Potential for another
discoverable and
Committed to branch, policy
Another Branch question, or
standards for
Art. I, Sec. 5 deference to another
Exceptions Factual Development: Hardship for having to wait resolution
*the more facts that can *generally economic (competence) branch
Powell v.
be developed the less hardship will allow CT to Goldwater:
McCormack: Goldwater:
chance of a review push through If there would be
House adjudicatory Not appropriate if
power of Art I, Sec. 5, multiple
only left to determinations from
but determined only inferences, dissent
as qualifications not different branches of
Class Collateral (Brennan) says that gov‟t
Voluntary Capable of Repetition yet consequences:
power to not seat foreign relations can
Cessation: Evading Review Effect will be be det by SCOTUS
Self- Goldwater: Nixon:
(a) no realistic (a) every time that it comes up, it longer lasting Rescinding a treaty, Const. did give
chance that D will be short lived even if seemingly question left for standards House/
parties are
will go back to (b) for individual – likely to find for decided executive, must look Senate to act &
still (Poe v. Ullman –
harmful conduct the exception at terms of would not be
advocating no actual constitution to this appropriate for SC to
(c) unanswered for ind v. class
prosecution) factor determine
Vertical Separation of Powers:

Enumerated Powers Rationale

Necessary & 10th Amendment & Effectiveness of

“All leg powers
Proper Clause States‟ Rights the Federal Historical Issues
herein granted” Commerce
(17) Rationales Government
Article I Clause
(must be tied to
Generally Sec. 8
power in Sec 8) Prevent federal Elections will be limit, Protection of States‟
tyranny not 10th amd Rights
McCulloch v. MD: Historical
Marshall gives a very Understanding of Enhance democratic Federalism protects Senators no longer
broad interpretation of the Commerce rule closer to ppl individuals elected by state govt
Necessary & Proper Clause
Clause, importance of Art. I, Sec 8 States as laboratories
Const in regulation of ppl Madison‟s Double
for projects Security
not the states; implied/
inherent powers justified

Gibbons v. Ogden:
Broad interstate, but Area for Congressional Regulation = intermingled
considered a broad sphere and sharing among state commerce
of independence
Early Interpretation
*when only affects 1 state
Commerce = „traffic‟ & Limits to C reg based on effect on 1 state =
„interstate‟, „navigation‟, completely internal
EC Knight: direct effects test –
mfer is not commerce, no reg if
w/ no effect on other state

Manufacturing v. Carter Coal: commerce going

Commerce elsewhere is NOT subject to
(1) Narrow definition of „commerce‟
regs when inside state
(2) restrictive of „among the states‟
Bright Line
1890s to 1937: (3) Cong violates 10th when in area of states Direct v. Indirect TX Railway: intrastate cannot
State Sovereignty damage industry in another
Stream of state (move to intra)
th Commerce
10 Amendment Limits: Next Page
ALA Schechter: not SOC
among states, not direct

NLRB v. Jones (1937):

Steel production regs; statute defines
Look at effect on “affecting commerce” - effect on commerce
commerce, not injury itself NOT the injury needed for inspection

More of a Darby (1941):

Very few limits on Spectrum Overturn Dagenhart, intrastate which so
1937 to 1990s: Congressional Approach to Effect on interstate affect interstate commerce or the exercise of
Broad Nat’l Power Power, started by Determining commerce generally power of Congress over to make legitimate
G. Depression Congressional end – w/in Cong power
Power Wickard v. Fillmore (1942):
Broad interstate, but considered a broad
Hodel (1981): Broad “Among the States” sphere of independence - *when only affects
Strip-Mining: Regulation permitted so long as Regulation Permitted 1 state”; disband ideas of directness,
rational basis by Congress for regulating production, et al

Katzenbach (1964):
Perez (1971):
Congressional Within state = completely within and does not
Loan-sharking, Congressional enactment
Authorization affect other States & not interfering with other
and basis for regulation (even criminal)
goals of govt; - the interstate nature of the
restaurant permitted regulation

Not traditional state Heart of Atlanta (1964):

Channels affirmed for reg
activity (fam, ed, land) Moral wrong allowed for regulation, disruptive
effect that racial discrimination has had on
commercial intercourse – means must be
Exclusively State
Noneconomic criminal will Congress should give reasonably adapted to the end permitted
1990s to Today: Rights for Some by Const.
likely fail under Comm Cl expression of justification
Shift Back – Cong. Limits Spheres & 10th
amd back in action
10th Amd = Limit on
Must be tied to Congress
commandeering and state
acting for fed govt
Commerce Clause (1) Why created - what‟s regulated?, (2)
Enumerated/Implied, (3) If Implied then
“A thing in interstate commerce” Necessary/Proper - Commerce

Channels of Interstate Substantial Effect on

Commerce Interstate Commerce

Roads, Waters, Reference to

Persons or Things
Airways, Internet, et al. Moving Between States

If within the (1) Channels or (2) Factors for Analysis:

“Production, (1) type of action linked to
Instrumentalities then often easier for
distribution, and commerce (JX link), OR
Congress deference & broad power Broad
consumption of (2) statutory authorization
commodities” Regulatory
Scheme or Congressional findings,
(Gonzalez) OR
Rational Basis & (3) not traditional function
Conditioning Aggregate Effect (family, education, land-
Spending Dole Elements:
federal funds to Examined & use) and no national
Power Limits Highway Funding
state action Deference to productivity nexus
Wickard = (1) Specific Activity
Governing Law Examination
(1) Condition is for (2) unambiguous – (3) related to fed (4) not coercive – ex (Non-Agg) &
the general welfare interest through (Aggregating) &
st must now what it‟s 5% of highway funds (2) No Deference to
with extensive losing for funds program or project – was not, full effect Deference to
deference to Reasonable Congress Congress &
Congress Relation Test (3) Link to I/C Required

10th Amendment & Commerce Clause Over Time

Wickard (1942) Guillen

Ames Garcia (2001) Specifically 10th Amendment Limits &
(1903) (1985) Thomas: state Guideposts (only when state actor)
Darby highway info
Overrule Usery, protected from
Harlan: (1941) reject state immunity discovery in civil
Congressional Condon
If analysis comes and traditional cases b/c part of
decision to regulate (2000)
within the commerce framework; structure channels
interstate commerce
clause, then no need of govt will protect the
is PLENARY and
for 10th amendment states Gonzalez
complete in self Rehnquist:
New York Printz
(2005) Allow banning
direct/indirect analys Powell/Rehnquist: (1992) (1997) of state info
Court is wrong, too O’Connor: Broad distribution
broad interpretation Regulatory O’Connor: Scalia:
NLRB (1937) Katzenbach (1964) of Cong power, “we‟ll Scheme, places Cannot simply Fed govt may (1) applies to
Ht of ATL (1964) be back” the issue into compel states not compel the more than just
aggregate analysis to eliminate states to enact the states –
TX Railway radioactive or administer a
Hodel (1981) also applies to
Greater waste products; federal private entities
Perez (1971)
Power bad direction to regulatory (2) regs not as
states; program – no affirmative act
commandeer issuing of but as owners
Less EC Knight
state directives or
Lopez Morrison of database info
Power Carter Coal US Corps of decisions not command of (3) not a
(1995) (2000) Eng accepted – do state officers or required action
ALA Schecter
Rehnquist: defines Rehnquist: (2001) through those within to but required
3 categories, says Congress exceeds spending power administer a prohibition
Usery this is sub effect bounds with crim Rehnquist: Ponds even if states program
Dagenhardt (crim gun statute) – stat on Violence not in open water have accepted Thomas:
(1914) a. ess part of broad; Against Women are not a part of the the regs (no Return to comm
Traditional state b. tied to Cong Act; noneconomic & choices given clause roots is
channels; Cong did
Employee regs on functions are authorization; c. not criminal statute; no not clearly intend to state) needed, 2nd 10th Amend.
child labor; no power protected by the traditional function express JX amd mention Triggers
fed to include ponds
in Cong to force 10th amendment, of state proc by element; no White/
states to exercise displacement of 10th; Congressional
Stevens/Souter/ Blackmun/ St/Sout/Gins/
police power = child state decisions O’Connor: need for findings (maybe not
labor is purely local (how to fund, Ginsburg: Stevens: Breyer: Commandeering
judicial certainty enough)
decision and does spend) – More than Seriousness of Threat of a
Thomas: sub effect Thomas:
not affect inter comm Factors: typical for commerce power at the public national Affirmative
test is bogus substantial effect
protection of stake in question, problem, irony emergency, actions needed
creation doc shld be
citizens comm included in of ignoring state 10th doesn‟t by state govt
Holmes Dissent: abolished
Stevens/Souter/ birdwatching & desires, fed is limit delegated
consideration of
Brennan Dissent: Ginsburg: Stevens/Souter/ hunting; should involved in powers;
Congress and not the State capacities
wrong decision Guns are part of Ginsburg: include natural other state historical
Court to decide, once
against Darby commerce, should Data was produced resources areas arguments that
product cross state
Stevens Dissent: look at aggregate – by Cong & was (railroads, taxes were Requiring state
lines then open to
Should be subject should have found sufficient – prisons, et al) collected by legislation
to fed regulation “rational basis” formalism criticized state agents
Separation of Powers
Federal Executive Powers

Acting w/ Express Article II, Sec. 1 = “Executive powers;” Art. II, Sec. 3 = “Take Care Clause” Inaction by Congress OR
Congressional Conflicting
Authorization Congressional Action
Youngstown Framework:
“Highest Ebb” Jackson’s Concurrence “Lowest Ebb”

(a) Pres takes measure

(a) maximum power that is incompatible with
(b) strongest Inaction by Congress OR express OR implied will of
presumptions in favor of Conflicting Congress
Congress Congressional Action (b) maintained ONLY IF
(c) burden of persuasion able to disable Congress
falls on attacking party Debatable
from decision
(a) either absence of
Congressional grant/denial
(b) OR acting on independent
Must tie the
presidential responsibility
Presidential action Example
(c) Cong inertia, indifference
being challenged to a
or acquiescence
(d) Doesn‟t necessarily require
a lawmaking process, may
Evaluate the just have leg actions (1952)
constitutionality of the Frankfurter &
statute in question w/ Jackson Opinions –
strong deference to Pres decision is
Congress covered by statute so
Foreign Affairs in 3rd and NOT a war
power – FF says
clear indication of C
Line Item Veto
In Korean War, need
Curtis Dames &
to defer to Pres war
Clinton Case: Wright Moore War Powers powers – “take care
2 other branches (1936): (1981): Resolution: clause”
No inherent Executive Inaction by
agree but court
powers in Agreements: Congress may
finds invalid states for Place in bucket prevent Pres
foreign 1 b/c Cong has from being Executive
relations – approved able to act; Privilege
Problem: solely federal through statute often
Nature of Dissent:
Not in line with the concern; Pres in Foreign dismissed on
Power: Different
“finely wrought “sole organ” - Claims standing or Nixon Case:
Specific form of political Cheney Case:
procedures of the Pres is better Settlement Arguments
regulations on
lawmaking government branch suited Comm, exec question Permitted –
how and why
for such agreement
process in the nowadays, doctrines Criminal v. Civil
Pres could veto Executive Priv.
Constitution” - court has determinations permitted
spending section
must have an interpreted
of bill post-
amendment if
passage broadly the Separation of
want this power; Numerous
even though ideas of leg Justiciability: Powers: Factors/
challenges – not
following the law, and exec, Baker = textually Job of the jud br Triggers:
how Const looks to “say what the
still not acceptable no need to committed, not - Mindfulness
referee enough that law is” - not of burdens on
dispute intra-branch shared w/ another the executive
dispute, regular branch – must branch
course of have claim of: - public policy
criminal (a) military, - whether
War on Terror proceeding so w/ diplomatic, or criminal or
in Art. III court sensitive national civil case
US can detain for duration of hostilities of power security secrets
for deference
conflict if engaged in armed against US
(b) evaluate
balance of need
Non-Detention Process still allowed for US CITIZENS – of judicial process
Act: AUMF: Hamdan (2006)
challenge status as enemy-combatant over exec priv
“No citizen shall be “all necessary and
imprisoned or appropriate force
otherwise detained against nations, Writ of habeas corpus is allowed for all DTT of Non-
by US except organizations, or citizens Military Commissions
pursuant to act of persons associated Order for military
Congress” - after with Sept 11” Standard of Review – “some evidence” v. tribunals being Civilian in “incident to
WWII det of JA private interest of unjust detainment established and rules of Temporary
times of conduct of
military govt
procedure for martial law war”
Must be provided: (a) notice of fact-basis of interrogation/trial
classification, (b) fair opportunity to rebut in
Hamdi (2004) front of neutral decision maker Stevens Maj: Thomas
Not in line with the
Br/Ken/Sout: Dissent:
UCMJ: No blank check for Exec should have
convention and
O’Connor: Stevens/Scalia Thomas Dissent: Court Martial the court is not
the pres expansive power
Ginsburg/Souter: permissible – Scalia/Al/Th: in FP, in bucket 1
Within statute but Dissent: This is war – get over it; instructions
Not within the captured in conflict JX was given by in this case
not in line with due Cons Suspension Clause this is an executive
statute – (I.9.2) says this is illegal power protected by and tried in congress through Alito Dis:
process concerns conflict, not miles DTT Geneva Art 3
Korematzu for US citizens Const
for citizens away satisfied
Separation of Powers
Administrative Delegation

Non-Delegation Doctrine Appointment & Removal

Art. I, Sec. 1 = “All Leg” Powers

Appointments Clause, Art. II, Sec. 2, cl. 2 – President nominates w/ Advice &
Principle that Congress may not delegate its legislative power to
Consent from Senate, but may vest power for inferior officers in President, Courts
administrative agencies – generally eroded to standards of delegation
of Law, or Heads of Departments

Has Cong delegated a leg power Analysis

Principal Inferior
Officer Officer

Standards Intell. Principle: (1) appointed by

Criteria to Guide Legislative Must be selected by Generally Look President alone, OR
Necessary for
Agency‟s Veto as Check = the President and At: (2) appointed by
Discretionary consented to by the heads of depts, OR
Discretion is Unconstitutional, (1) Incongruity
Choices Made by Senate (3) appointed by the
Necessary; Bicameralism (2) Power Intrusion judicary
Executive Branch
Agency cannot (3) Power
make policy Expansion
ALA Schechter: decision, but may Evaluate the No reservation of Subject to
No restraint on use benchmarks legislative nature Scalia Dissent:
removal by removal by
President‟s legislative of the decision Any restriction on
Congress higher executive
choices – no the executive‟s
Whitman permitted EXCEPT official (i.e.
standards for trade, power should be
industry, or activity – Trucking (2005): through removed by
Evaluate the void and invalid;
unfettered discretion “Necessary to protect impeachment Attorney General)
Framers‟ Intent good cause
for enacting laws by the public health [air
standards]” - (limited indp role restriction did so,
President so invalid Statute only
“determinable for each branch) and so should not
Principals may be provides certain,
standard” is not be permitted
removed at will of limited, duties
Panama Refining necessary even for
Broad Regulatory
President, but (not policy making
(1935): Whether efficient
HOT OIL – Schemes – use of agency officers and no
or not is
Regulation of whole scientific data generally must administrative
immaterial, must
economy based on 1 allowed have just cause – duties outside
protect through
standard (“unfair measure is NOT specific office)
sep of powers and
whether “purely
President cannot executive”
have choice of what
Officer is limited
is injurious or “unfair
competition” - cannot Includes legislative in jurisdiction –
make these choices veto as uncon for examine through
and act accordingly, all agency rules Must look to If quasi-executive scope off
must be left to too, must have whether removal and quasi- jurisdiction
legislature bicameralism to power restriction legislative then
overturn exec impedes Pres “good cause” is
action executive power to permitted to Limited tenure –
NO other law has execute laws – is separate from full generally
been determined the burden executive control “temporary” to
Chadha (1983): hampering ability over office
to be invalid based accomplish
Efficiency alone will to control the
on delegation not save an action; specific task
official? Interference in the
House judiciary
comm tried to revoke executive branch
a hold on deportation functions? Outside vesting is
for Chadha; granted Cong
Deemed legislative deference but
and needed
need to evaluate
legislative process
separation of
Leg Veto is useful powers concerns –
tool and has been no
used throughout “incongruous”
statutes inter-branch

Some means of
controlling the
actions of officer
are included –
then does not
violate sep of