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Constitutional Law I
Santa Clara University School of Law
Steinman, Edward H.


Challenger/State Arguments

Fed. Gov’t. Arguments

Commerce Power

1. Does the Congressional Act have such a SUBSTANTIAL RELATIONSHIP to interstate commerce that congressional control is essential and appropriate?

Wholly Intrastate:
First, try to argue that neither channels or instrumentalities are involved if that is what the fed gov’t will argue.
If Substantial Relation:

No jurix element (no jurix nexus b/w the regulated act and interstate commerce) (not fatal)
Not economic enterprise

Rational basis can’t exist
Can’t use cumulative effects if no economic

No fact finding of substantial effect

Too tangential and uncertain

Area of traditional state control

Look for criminal law

LIMITS on Commerce Power:
10th Amend.:
· Congress is commandeering states (NY v. US)
o No accountability because the law is passed by the federal gov’t.
o Places a financial burden on the states because they have to spend money to comply with the federal regulation
Ex Post Facto: prohibition against retrospective punishment
Plain Statement: unless congress in a plain statement notes its intent to regulate state functions that touch upon essential state gov’t, court will presume the law to intrude on states’ rights

1. Does the Congressional Act have such a SUBSTANTIAL RELATIONSHIP to interstate commerce that congressional control is essential and appropriate?

Focus on legislative history to prove factually a relation to commerce and therefor an area of national concern
Lopez: 3 catagories where Congess CAN regulate:

Use of channels (phone lines, air waves, roads)
Instrumentalities (persons and things)

If the law falls into one of the first two catgories, presume it substantially effects interstate commerce

Substantial Relation

Economic activity must be essential and substantially effect

Only need rational basis to believe

Can regulate based on cumaltive effect
Use facts to show that it is an area of national concern
Looking at traditional/integral state area is unworkable (Garcia)

Look at practical conception and actual experience (rational basis), give Congress great deference

10th Amend: not really a limit, only a truism that all is retained that
has not been surrendered. (Darby)
Federal Regulation of States

Congress is regulating states

Attempt to distinguish b/w federal law that is only regulatory and that which also involves state activities (enact laws/regulations)
Show that the federal law requires purely ministerial spending, no money expenditure

Prohibition of conduct, not an affirmative mandate


Challenger/State Arguments

Fed. Gov’t. Arguments

Taxing & Spending Powers

Taxing Power
Why Congress CANNOT use Taxing Power here: (Butler)

Revenue is not the primary goal – revenue is incidentally related to the enactment
It is used as an instrument to enforce regulation of matters of state concern w/ respect to which Congress can’t interfere

Can’t backdoor Commerce Clause by taxing
Earmarked for a special group, not general fund

Spending Power
Hardly any cases b/c lack of standing, ONLY STATES CAN RAISE CLAIM
ENDS Analysis: (Butler)

No legitimate consitutional end: not for the general welfare
Look at real benefit, not theory

Amounts to coercion

Will probably lose b/c of deference to Congress, so would start with means

MEANS Analysis: (Dole)
Must only show ONE of the following:

Coercive: used to induce states to engage in activities that would themselves be unconstitutional

Pressure becomes compulsion
Condition linked to irrevocable agreement
Proceeds were earmarked

Not rationally related to stated end
Was not an unambiguously condition

Doesn’t enable state/person to make exercise choice knowingly
Only prong where Congress has lost
Doesn’t want to only win here b/c it is the easiest one for Congress to correct.

Taxing Power
Why Congress CAN use Taxing Power here: (Steward Machine)

Taxes are going to the general fund
The provision had state approval and couldn’t be a law without it
State may at any time repeal its law
Tax is directed at a constitutional end

Spending Power
May be preferrable to Commerce b/c no Lopez or Morrison
ENDS Analysis: (Steward Machine) Gov’t. has burden?

Must show it is for general welfare

Public purpose
Federal Interest

Focus on theory of benefit, not reality (potential of gains or losses)
Deference to Congress in deciding general welfare

MEANS Analysis: (Dole)
Must show ALL of the following:

Not coercive

The state/person had a choice
Focus on theory
Uncertainty of losing benefit

Rationally Related to the general welfare
Stated unambiguously

State/person can exercise choice knowingly


Civil/criminal justice: need facts
Integrity of courtsl; relevant in criminal cases
If afford absolute privilege; courts play no role


Have immunity from damages arising out of their official acts b/c this serves public interest.
Doesn’t support immunity from official conduct.

Over foreign and military affairs: Dames ve Regan

Youngstown can’t be used in cases that involve int’l crises where Congress may have not anticipated need for legis.
Past practice does not create power, but long continued power would raise a presumption of Congress’ intent


President needs to speak/listen on behalf of country
Congress has always acquiesced through his practice


Inherent foreign affairs power vested in national gov’t and suggested an executive primacy in their existence
Congress may delegate much broader powers to the Pres in foreign affairs than in domestic affairs
Plenary power of pres as sole organ of fed. gov’t in the field of Int’l. relations.


Congress adopted joint resolution called WPR, spells out president’s authority
If Congress uses authority, must report to Congress

W/out subsequent congressional action, troops must be removed


Standing? Congress can have standing
Political Question? No, real duty.
Avoid Consitution?

Difference b/w joint resolution and concurrent resolution?
JR à like statute
CR à lowest

Statutory analysis
Constitutional issues:

Prevents him from preemptive attacks
Doesn’t allow us to introduce troops if allies are attacked
Or if americans are in danger



Must involve national well being
Requires state to affirmatively do something
Greater scrutiny when indiv. Right is involved

10th Amend. is not available in limiting treaty
Treaties are laws when declared to be so under authority of United States