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Constitutional Law I
Santa Clara University School of Law
Sloss, David L.

Fall 2012 – Constitutional Law I – Professor David Sloss


A. The Case for Judicial Review:

1. The Federalist Papers: advocacy pieces used to help convention in ratification process

•Federalist No. 78: judiciary has right to validate Congress in judicial review bc:

a. separation of powers requires independence of judiciary from other 2 branches;

b. judicial review of power: must be empowered to strike down law violating Const

2. Marbury v. Madison(1803, Marshall): SC does not have original jx under Art III to issue writs of mandamus to require officer to enforce commission, even though the statute authorizes president to appoint Marbury & seal affirmed completion. Although Judiciary Act of 1789 authorized such jx, § was unconstitutional bc Congress cannot allow original jx beyond situations enumerated in Constitution.

àestablished authority for judiciary to review the constitutionality of legislative & executive acts(even though Const. silent as to whether fed cts have authority).

B. Limits on Judicial Review(Art. III):

1. Advisory Opinions:

a. Correspondence of the Justices: Separation of powers does not allow the judicial branch to weigh in/answer exec office legal questions relating to current issues.

2. Cases & Controversies: 3 elements of justiciability

. a. Standing: need to limit cts, but also need to empower cts

Constitutional Core Requirements:

(1) P must have concrete injury(injury in fact);

(2) Injury must be traceable to conduct of D(causal connection); &

•Warth v. Seldin: No standing for low-income Ps because housing economy causing expensive home rates, not city ordinance.

(3) Injury must be redressable(remedy)

Prudential Rules Barring P from:

(1) General grievences; &

(2) Asserting rights of 3rd parties

àCongress can alter prudential rules but not constitutional rules

Standing Requirements for Associations to Sue:

(1) at least 1 of association’s members would have standing in own right;

àindividual who suffered actual damage can sue for damages on own behalf

àassoc can only sue for declaratory or injunctive relief, not damages

(2) interests that association seeks to protect are germane to it’s purpose;

(3) neither claim asserted nor relief requested requires participation of individual members of suit

b. Ripeness: not too early (does he have an injury yet?)

(1) Are the issues fit for judicial resolution; &

(2) Will parties suffer hardship if judicial resolution is delayed?

c. Mootness: not too late (already resolved)

(1) requisite personal interest that must exist at commencement of litigation (standing) must continue through it’s existence (mootness)

(2) Exceptions: (i)capable of repetition but avoiding view; & (ii)voluntary cessation

àWarth v. Seldin: No standing for Home Builder Ps bc have not pointed to particular project that’s submitted to board at time of trial(ripeness & mootness problem).

3. Political Question: the Court cannot hear cases…

a. textual: whether issue textually/structurally committed to another branch of gov;

b. functional: lack of judicially manageable/discoverable standards; or,

c. prudential: need to adhere to decision made bc issue too controversial(consequences).

àBaker v. Carr(1962, Brennan): Ps challenged apportionment of electoral districts for violating 14thA. Held: Case justiciable; Political Q have relationship between judiciary & coordinate branches of fed gov, not relationship to states. Addtl types of political Q:

a. decision would show lack of respect to other coordinate branch of gov;

b. must adhere to a political question already made;

c. embarrassment from multiple depts answering the same question differently

àNixon v. US: Nixon impeached & sought to have impeachment tried in SC. Held: Senate Rule XI is nonjusticiable. By examining Art. I §3 cl. 6 to determine scope conferred on senate relating to impeachment, history & contemporary understanding of said procedures is limited to the legislature & outside judiciary’s purview.

àDistinguishing between strong & weak forms of the Political Questions doctrine:

a. strong: ct powerless to do anything bc question committed to other branch

b. weak: other branch has broad discretion to act in particular area under const, so ct won’t interfere w/ how they utilize their discretion


A. The Marshall Court & the Federal Balance

1. Powers of Congress (Art. I, §8)

a. Necessary & Proper Cl(Art. I, §8, Cl 8): grants Congress power to make all laws which shall be nec & prop; necessary = useful for welfare of nation & broadly interpreted

b. Test: (1)identify some other power granted by Const to fed gov;

(2)if law at issue is a nec&prop means of executing that other power, then law is valid

b. McCulloch v. Maryland(1819, CJ Marshall): Congrss made bank of US& 2yrs later, MD passed§ to tax all banks. Held: Congress had implicit authority to establish Bank of US & state action may not impede const power by fed gov. Ct broadly defined scope of Congress powers: may act if end is legitimate & w/in scope of Con & means that are not prohibited & consistent w/ letter/spirit of Cons(rational basis test)

àdefines scope of Congressional powers & relationship between state & fed gov

B. The Federalist System & Dual Sovereignty

1. Dual Sovereignty: the relationship between federal & state gov

a. Federalist No. 10: argues Const will establish gov capable of controlling damaging effects caused by factions

b. Fed. 51: federalism & sep of powers work together to form double security for liberty

C. Limits on State Power

•Gibbons v. Ogden(1824, CJ Marshall): steamboat case-Congress power under commerce cl preempts state law& its monopoly holder must give way to fed license. Broadly interprets commerce scope as navigation & commercial intercourse btwn states & foreign nations

àct analyzed under supremacy cl bc Congress acted w/ legislation

1. The Dormant Commerce Clause: state laws are unconst if they place an undue burden on interstate/foreign commerce, even if Congress has not acted (silent)

àderived from actual commerce cl Art. I, §8 Cl3: Congress shall have power to regulate commerce w/ foreign nations & among several states & w/ Indian tribes

a. Early Dormant Commerce Cl: relied on state police powers v. fed power

•Wilson v. Black Bird Creek Marsh Co: state exercising police power, not Congress’ power on commerce, so state § constitutional.

àstate police power: inspection laws, quarantine laws, health, turnpikes, roads, etc.

b. Policy & Evolution of Dormant Commerce Cl(see also commerce cl evolution below):

(1)Dual Federalism(exclusive): 2 independent, reciprocally limiting fields of power

àproblem: economy interrelated; cts evolved thru 3 diff frameworks before 1937

•commerce v police reg: fed has exclusive reg over commerce –police reg(Gibbons)

•local v. national: state has exclusive reg over inherently local issues & fed natl

•direct v indirect: states can regulate thing that has indirect effect on IC(EC Knight)

(2)Concurrent: fed & state gov share jx over same subject-matter(expanded w New Deal)

(3)Policy: whether ct should be aggressive v. defer state §? evaluation of scope turns on:

•importance of cl: how important is it that state laws that interfere be invalidated?

•allocation of power: appropriate allocation btwn Congress, states & judiciary

•justification: econ/political unity; social welfare(§ inefficient by impeding free flow of goods); representation reinforce(§burdens out-of-staters who arent repped)

c. Current Dormant Commerce Cl Test:

(1)Does the state law burden interstate commerce?

(2)Is the state § facially discriminatory or non-discriminatory against out-of-staters?

(a)facially discriminatory: if state law by its terms is facially discrimà per se invalid

•will be upheld only if state shows compelling state interest & no nondiscriminatory alternatives & no protectionist intent(SS of ends/means); rarely upheld

•Philadelphia v. NJ(1978, Stewart): NJ§ prohibited waste collected outside state. Held: §invalid bc facially discrim(protectionism); §by its terms discriminatory btwn instate & out-of-state waste bc allow NJ to dump in NJ but not NY in NJ

àct focused on § purpose, its discriminatory effects, & state’s interest

(b)discriminatory purpose/effect: if § facially neutral but discriminatory in purpose/ effect, not necessarily struck down, but strong consideration(Hunt)

•Nebbia: no evidence § discriminated facially against btwn in-state & out-of- state milk producer; even if law had discriminatory effects, would not be subject to SS

(3)If found non-discrimin., balance law’s burden on interstate commerce against benefits

•under balancing test, state almost always wins(Pike)

•Kassel v Consolid. Freightways Crp(Powell 1981): P(carrier) challenged Iowa § re: 55ft interstate truck max. Held: Under balancing test(bc safety reg), § invalid bc burden on interstate commerce outweighed state’s regulatory interest; evidence presented in district ct key(plurality). Judg. For P.

àConcur(Brennan/Marshall): § discriminatory/protectionist & should be held to per se rule of invalidity; evidence for leg at § enactment key, not at time of trial.

àDissent: illegit of cts to step in & 2nd guess state govs

2. Privileges & Immunities Clause(Art. IV §2): no special treatment for state citizens

•challenge state§ that discriminate against out-of-staters in ability to earn livelihood

àe.g., right to work in state

3. Equal Protection Cl: no discrimination against non-state citizens

4. Supremacy Clause(Art. VI): federal law trumps state law

àdistinction btwn “supremacy” & “preemption”

5. Federal Preemption of State Law

a. Express Preemption: Congress expressly put in §

•Lorillard Tobacco Co v. Reilly: MA§ addressing sale/ads for cigs invalid as it falls w/in scope of express preemption§ of FCLAA. Context of Congress’ crafted preemption§ shows Congress prohibited state cig ad regulations motivated by health concerns.

b. Imp

nged constitutionality of Act. Appeals found § unconst bc inadequate findings by Congress as to IC relationship. SC affirmed but bc not substantially related to IC; Act doesn’t regulate commercial activity, doesn’t contain any jx req to ensure firearm possession affect IC, not essential part of larger reg of econ activity. Ct doesn’t reject rationl basis test; modifies by making distinction btwn commercial& nonecon activity. Dissent(Souter, Stevens & Breyer): wants rational basis test; undue judicial activism

c. Commerce Cl Test Derived from Lopez: Congress can use its commerce power to reg:

(1)channels of interstate commerce (highways, waterways, borders);

(2)instrumentalities or things/persons of interstate commerce;

(3)activities that substantially affect interstate commerce

(a)Are they regulating economic/non-economic activity?

àwhat’s the activity being regulated?

àdepends on how characterize activity being regulated(buy/sell v. personal)

àframe eval according to goal(look at fed§: buy/sell mj v. P: personal use)

àform v. purpose: use commercial terms to regulate non-econ purpose

(b)economic/commercial activity: can aggregate(Wickard) & use rational basis test

àrational basis test(Lopez) if Congress could rationally find intra/inter state activity, when aggregated together, substantially affects other states/IC.

(c)non-commercial activity: cannot aggregate similar stuff to determine if effects IC

àconsider whether regulated activity traditionally w/in state’s police power

(4)Additional Considerations:

(i)jx hook(Lopez): require element that item has moved/effects interstate commerce

(ii)Congressional findings(Morrison): demonstrate Congress considered whether proposed regulation fits w/in scope of its Const powers

(iii)Pre-emption Provision: Congress can use as long as acting w/in scope of 1 of their enumerated powers under Art. I.

(iv)Part of larger regulation(Raich): Congress has authority to regulate broad sweeping § such as CSA(unlike Lopez, which was single §). Essential part of larger reg of econ activity in which reg scheme undercut unless IC regulated.

d. US v. Morrison(2000, CJ Rehnquist): P(college kid) raped by football players & brought suit under Violence Against Women Act, argued under 3rd Lopez factor. Ct struck down VAWA, saying violence against women not commercial activity & therefore outside Congress’ commerce power. Even though Congress found violence against women had substantial effect in aggregate, not dealing w/ commercial activity, so cannot aggregate.

e. Gonzales v. Raich(2005, Stevens 6-3): Ds grew weed for personal med use under CAs Compassionate Use Act. DEA came & ruined plants under Fed Controlled Substances Act. Held: CSA§ valid. Congress had rational basis for concluding its objective of prohibiting mj from interstate market could be undercut if those activities were exempt from its comprehensive regulatory statute. In econ activity eval, ct looked to Congress, who, when CSA enacted, was regulating broad field of activity in CSA.

àIntrastate production of item sold in interstate commerce = economic activity

àKey relationship is between Cts & Congress (dissent says its Congress & States)

àRefused to consider facial(§Const) v. as applied(§unconst) bc overrules Wickard

Concur(Scalia): ct should use nec & prop cl bc allows Congress to regulate activity that affects broader goals of commerce regulation(including intra-state non-econ).

Dissent(O’Connor): wants burden of proof on those who want to uphold CSA to show it substantially affects IC. Evaluates via objective markers(traditional state reg).

f. Commerce Cl Evaluation Under Necessary & Proper Cl(Art I §8): make all laws which shall be nec & prop for carrying into execution foregoing powers; ends/means

•US v. Comstock: Const requires link between enumerated ends & un-enum means. Ct expands congress powers using N&P as vehicle. Claims congress has adtl powers under cl if: (1)breadth of nec/prop cl allows it; (2)long history of fed involvement; (3)§ narrow in scope; & (4)§ enacted w/ ends of safeguarding public from danger