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Constitutional Law I
South Texas College of Law Houston
Kelso, R. Randall

Constitutional Law
Spring 2011
Question 1
Federal Legislative Power (27)
·         McCulloch v. Maryland 1819 – Foundational Case for Determining Legislative Power of the Federal Government
·         The notion of implied powers is explicitly stated in the “necessary & proper clause” Congress may “make all laws that shall be necessary & proper for carrying into execution” the specific legislative powers granted by Art. I, § 8 or other provisions. So long as the means is rationally related to a constitutionally specified objective, the means is constitutional. Let the end be legitimate, let it be within the scope of the constitution and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional. Means which is rationally related to objectives that are within constitutionally enumerated powers.
·         Key holdings
o   Congress has implied power to enact all laws necessary & proper in order to perform the duties imposed on Congress by the Constitution. Congress has the discretion and power to choose the means by which it will effect its duties.
o   The Constitution and the laws enacted by Congress are supreme over the constitutions and laws of the States.
Article I, § 8. Commerce Clause (27)
 The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Congress has the power to regulate commerce with foreign nations, among the states and with Indian tribes.
Analysis: Commerce Clause Test (MODERN VIEW)
a.    Prong 1 – Is it commerce? That is, is there any economic activity?
                         i.        Valid economic activity
1.      Use of interstate commerce (Ames—transport of lottery tickets from one state to another) formalist
2.      Control of intrastate “closely related” to interstate (Shreveport- intrastate rail freight rates) formalist; Pierce County, WA v. Gullen – regulation of intrastate roads connected to interstate highways
3.   “Substantial Effects” on interstate commerce (Wickard Aggregation—farmer’s production for self consumption affected interstate commerce) Holmesian
4.      Buying/Selling
5.      Navigation/ Transportation (Gibbons v. Ogden)—ferry traffic is commerce;
6.      Stream of Commerce (mfg, mining, agriculture) (Darby—congress can control mfg because puts good into the stream of commerce); regulation of instrumentalities, persons or things of interstate commerce
7.      Criminal & Civil Rights legislation with an Economic Nexus (Heart of Atlanta Motel v. US racial discrimination by hotels affects interstate commerce; Katzenbach v. McClungs—same for restaurants; regulation that has a moral component is valid as long as there is an economic nexus); Perez v. US – extortionate credit has ripple effects on interstate commerce by Wickard aggregation, so criminal regulation valid.
a.      Involves the use of the channels of interstate commerce
b.      Regulation of instrumentalities (mechanism), persons, or things in interstate commerce or used to carry out interstate comm; articles moving in commerce
c.       Activities having a substantial relation to interstate commerce.
                       ii.        Invalid Economic activity
1.      Pure Criminal, civil rights, education, family law; there is no economic nexus or self contained economic component of the regulation
2.      US v. Lopez—gun free school zones regulation not commerce; purely criminal regulation; regulation had localized effects, not significant effects on interstate commerce.
3.      US v. Morrison—Violence against women regulation not commerce; it has no self contained economic component; Even though the Wickard Aggregation Principle may allow a substantial effect, if there is no economic nexus, it is unconstitutional.
4.      Specifically prohibited legislation – 21st amendment prohibits national regulation of alcohol.
5.      Commerce prohibiting legislation is valid: Gonzales – prohibits home-grown marijuana for medicinal purposes; Mann Act – prohibits interstate transport of women for prostitution.
b.    Prong 2: Among the states is found when there are substantial effects on interstate commerce
1.      Valid among the states
a.      Concerns more states than one (substantial effects—Wickard Aggregation Principle—Ask “do the entirety of regulated transactions have a substantial effect in interstate commerce?”
b.      Is the regulation rationally related to achieving the legislative end? Rational basis test: Did Congress believe there is a substantial effect?
                                                              i.       Great deference to legislative findings. Motive & purpose of a regulation are matters for legislative judgment, unless a non-commerce type activity (Lopez, Morrison).
                                                            ii.       Means reasonably adapted to the permitted end are valid even though they involve control of intrastate activities.
c.       National solutions to national economic problems (NLRB v. Jones & Laughlin—right to unionize is a national concern)
2.      Invalid Among the States
a.      Completely Internal AND
b.      Does not affect other states AND
c.       No need for federal interference
d.      Solid Waste Agency v. Corps of Engineers—isolated water in a gravel pit not a navigable water so not affect more than one state; Corp of Engineers had no authority to regulate the use of the gravel pit.
Mention if you have time
(1)          Holmesian/Natural Law Commerce Power Test is a 2-part test
(a)     Is it COMMERCE & is there a substantial effect on interstate commerce? an economic component? a national issue? If Congress has rational basis for thinking there is an effect, the court defers or do own reasoning.
(2)          Instrumentalist Commerce Power Test is a 1-part test:  Is there ANY EFFECT as measured by Wickard aggregation?
10th Amendment (29)
“The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
If the powers are not delegated to the United States, they are reserved to the people or the states. 10th Amendment is no longer an independent limitation on congressional authority over commerce.
a.      What is being regulated? The State, the people, or government officials?
b.      For what purpose? Does the regulation result in commandeering?
2.   Garcia – if the federal government has been delegated the power, the 10th amendment will not limit that power. If it is a valid exercise of enumerated congressional power (e.g., CC, T&S), not limited by 10th amendment.
a.      Federal regulation of state officials/States directly is constitutional; (Garcia v. S.A. Metro federal minimum wage applied to public & private employees valid); a generally applicable that applies to state governments and private individuals is probably valid.
b.      Telling States what they have to do with their own people is not constitutional.
c.       Constitutional: Can regulate the states, can regulate the people, or regulate both. Cannot direct the legislature or executives of a state to do a particular thing. Cannot regulate states as states in a way that impairs state sovereignty over traditional government functions, unless the federal interest justifies state submission.
3.   NY v. United States— no commandeering state legislature
a.      (The Commerce Clause authorizes Congress to preempt State regulation and regulate interstate commerce directly, and to provide incentives by attaching conditions to receipt of federal funds. However, the Tenth Amendment forbids Congress from regulating the State government's regulation of interstate commerce, no matter how powerful the federal interest involved. Requiring States to either take ownership of waste or regulate according to the instructions of Congress exceeds Congressional authority.)
b.      Congress may not “commandeer the legislative process of the states by directly compelling them to en

on has some rational relation to the purpose of the spending program the condition is valid.
The Court will find a constitutional violation if:
(1)    Congress tries to evade some independent constitutional limitation on Congress’ power (e.g., 1st Am. freedoms, 5th  right against self incrimination) or
(2)    Spending incentives are not “reasonably related” to the particular exercise of the spending power; or
(a)    Sabri v. US – criminal penalty to control bribery where programs receive federal funding was reasonably related to controlling the spending program.
(3)     The spending practice is “Coercive”
(a)    South Dakota v. Dole – 5% Fed Highway funds conditioned on drinking age; not coercive.
Congress cannot covertly regulate through its tax & spend authority in an area where Congress does not otherwise have authority to regulate.
Covert regulation happens when
(1)    A condition/regulation is not rationally related (but a direct relation is not required to make the condition/regulation valid)—this is not a high hurdle-only some connection between the federal program and the condition/regulation is required to make it valid. OR
(2)    A condition is coercive. Butler – a condition cannot be coercive – If congress can’t regulate an activity directly, it cannot use its taxing authority to impose a coercive tax to regulate that activity (rarely an issue); OR
(3)    A grant is coercive
Sabri v. US
A criminal statute against bribery in the context of a federally funded spending program was found constitutional because a criminal law was “necessary and proper” in this context to regulate the spending program.  A sufficient rational relationship was shown on the basis that a program receiving federal funds was subjected to payment of bribes out of the program Bribed officials are untrustworthy stewards of federal funds and should be punished. “Money is fungible, bribed officials are untrustworthy stewards of federal funds and corrupt contractors do not deliver dollar for dollar value.”
South Dakota v. Dole
Fed Highway funds may be conditioned on drinking age;
Congress has no power to regulate the drinking age of the citizens of a state because that would violate the 21st amendment. Congress may use a spending incentive-a conditional grant of highway funds–to encourage a state—raise the drinking age to 21 or forgo the funds. The rational relationship was based on a desire to provide for the welfare of the people for safe interstate travel to minimize monies required to fix damaged caused by drunk teenage drivers on federally funded highways.
Bicameralism & Presentment
The President has the power to enforce the laws, not make laws or change laws. Congress makes the laws and presents to President to sign into law or veto.
Article II, § 1 Executive Power
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term,
5 presidential powers from Art. II
1.      Executive power is vested in a President
2.      Take care that law is faithfully executed.
3.      Commander in chief
4.      Pardon Power
5.      Veto Legislation.