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Constitutional Law I
SUNY Buffalo Law School
McCluckey Alyssa

Con Law Final Outline
Judicial Powers
McColloch v. Maryland
Separation of powers
Marbury v. Madison
Judicial Review
Martin v. Hunter’s Lessee
Appellate Jurisdiction
Cohen’s v. Virginia
State courts’ criminal law jurisdiction
Ex Parte McCardle
Congress limiting Supreme Court’s Jurisdiction
Allen v. Wright
Litigant must have standing; provides standing requirments
Raines v. Byrd
Valley ForgeChristianCollege v. Americans United
Baker v. Carr
Political question case; lists political question requirements
Davis v. Bondemere
Political question-Gerrymandering
Nixon v. United States
Political Question-Impeachment
Congressional Powers
Commerce Clause Powers
Gibbons v. Ogden
Supremacy clause
United States v. E.C. Knight Co
Commerce Clause does not regulate manufacturing
Houston East and West Railways v US
Commerce Clause does regulate RR
Stafford v. Wallace
Commerce Clause-stream of commerce
Commerce Clause does affect local strike
Champion v. Ames
Commerce Clause-lottery tickets
Hammer v. Dagenhart (overruled)
Commerce Clause-cannot be used to regulate work conditions
Schechter Poultry
Commerce Clause-does not regulate intrastate commerce which indirectly affects interstate commerce
Carter v. Carter Coal (overruled)
Commerce Clause-production is a purely local activity
NLRB B. Jones Steel Corp
Commerce Clause-does regulate worker activity that has a substantial affect on interstate commerce
Wickard v. Filburn
Commerce Clause-individual activity that has an aggregate affect on interstate commmerce
US v. Darby
Commerce Clause does regulate articles injurious to public health, morals, and welfare
Heart of Atlanta Hotel
Commerce Clause-rational basis, discrimination
Katzenbach v. McClung
Commerce Clause-discrimination in restaurants
US v. Lopez
Commerce Clause-current rule
Part of VAWA is Unconsititutional
Treaty Power
Missouri v. Holland
Necessary and Proper
Taxing and Spending Power
Bailey v. Drexel Furniture
Congress has right to impose tax, not impose morals
US v. Butler
Congress may not regulate areas traditionally under state control
Steward Machine v. Davis
Congress can regulate areas typically under state control as long as it does not interfere with states’ quasi sovereign power
South Dakota v. Dole
Conditions for receipt of federal funds, 4 part test
Katzenbach v. Morgan
Congress many enact legislation to counteract state laws that violate the equal protection clause
City of Boerne(overrules part of Morgan)
Congress can enforce or remedy existing 14th amendment rights, but can’t expand substantive rights
Florida Prepaid
Congress cannot create a new right, but can create a new means to get to that right
Age Discrimination Employment Act is unconstitutional.
VAWA provision giving a civil remedy is unconstitutional
10th Amendment Limits
Maryland v. Wirtz (overruled)
FLSA is constitutional
National League of Cities (overruled)
FLSA is unconstitutional. Congress can’t regulate state and local agencies
Garcia v. San Antonio
FLSA is constitutional. Congress can regulate state and local agencies
South Carolina v. Baker
Federal tax on state bonds is constitutional.
Gregory v. Ashcroft
Federalism principles limit congress’ interference with fundamental state decisions
New York v. US
Congress may not commandeer the legislative process of the states
Printz v. United States
Congress cannot conscript state or local executive officials to administer or enforce federal laws.
Reno v. Condon
Congress can regulate state activities, but cannot regulate manner in which states regulate private parties
11th Amendment Limits
Union Gas (overruled)
Article I powers, like 14th Amendment enforcement powers, trump 11th Amendment immunity.
Seminole Tribe
Congress cannot use Article I powers (commerce clause) to abrogate state sovereign immunity under 11th Amend.
Alden v. Maine (extends Seminole Tribe)
11th Amend. (and 10th Amend. principles) gives states immunity from private suits for damages not just in federal courts but also in state courts. BUT  — 11th Amend. does NOT bar suits brought by Federal Government itself  (includes suits to enforce Article I laws).  — 11th Amend. still does NOT bar damage actions brought under laws enforcing 14th Amendment (section 5 powers)  — 11th Amend. allows some suits for injunctive relief  — 11th Amend. does NOT bar suits when states consent
Florida Prepaid
Damages remedy against states under federal patent law is UNCONSTITUTIONAL.
Damages remedy against states for violations of ADEA is UNCONSTITUTIONAL.
Executive Powers
Steel Seizure Case
):  Decided that the Constitution does not give the President power to seize steel mills to maintain Korean “war” production
 Rule (Jackson’s opinion):  Continuum of Executive power  1) Strongest if Congress authorizes  2) Concurrent authority if Congress is silent  3) Weakest if Congress contradicts
Dames and Moore v. Regan
Decided that the Constitution permits President to suspend claims against Iranian gov’t as part of agreement to end the hostage crisis.  
Immunity from Judicial Process-not explicit in text (compare with legislative immunity)
US v. Nixon
Court ordered Pres. Nixon to comply with subpoena of Watergate tapes.  Rule:  President has no general immunity from judicial process, but may have qualified executive privilege (balancing test — state secrets protected).
Nixon v. Fitzgerald
Court rejected civil damages action by federal employee fired after complaining about military cost overruns.  Rule:  Absolute immunity for acts in official capacity.
Clinton v. Jones
President has no temporary immunity from civil suits for alleged misconduct occurring before taking office.  Rule:  a) immunity is grounded in official function, not individual actor  b) but federal courts should give “utmost deference to Presidential responsibilities and  c) Congress can decide to give President stronger protection
Impeachment as limit on Executive Power
Article II, §4  “The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.”
1. Separation of Powers
McCulloch v. Maryland
Marshall Says there are 2 questions
                                1. Is the bank itself constitutional?
                                2. Is the state tax on the bank constitutional?
I. Marshall’s Reasoning:
                A. First question implies a federal power for Congress to establish bank.
                B. Then reads that implied power to say that states’ power are implicitly limited. 
C. Says that Maryland taxing the federal bank is like the state of Maryland taxing the people, and the people have not consented. The federal gov’t is about the people. 
D. First, says that taxation is part of state’s sovreign powers, but that taxation power only extends in that state’s boundries—to change this would be to tax others. 
E. Reconstructs a limit on state society, as a protection on popular sovereignty-structural argument. 
F. Textual Argument: States can’t tax exports and imports—jumps from this to his arguments. 
G. Textual Argument: Supremacy Clause-the federal gov’t controls everything, the constitution is the supreme document. 
1. Have a dual sovereignty system, but the federal gov’t is supreme. Uses this clause to justify implied limits. 
Doctrinal Points:
Helped to establish broad federal powers, but it affirmed a basic constitutional principal that the federal gov’t’s powers are limited—only has those powers delegated by the constitition. (Some belief that there’s federal power over foreign affairs)
Federal Gov’t can only act with an affirmative grant of power. 
State gov’ts are different, they do not need an affirmative grant of power to exist—they have plenary power. 
See page 286 of the packet for steps of analysis—is it state power being exercised or state?
Foundational case on the “necessary and proper clause”—this is not an affirmative grant of power, gives congress broad discretion to choose the means to reach the enumerated ends. Example: X is necessary and proper as a way to carry out Y (must be an enumerated end). 
Jefferson’s Critique:
·         Broader vision of government: upset the structure of limited federal gov’t. 
·         Starts with the words necessary and proper and moves towards a structural argument. 
Jackson’s Critique:
Uses a constitutional argument to issue a veto.
Accepts the implied power that Marshall delineates in McCulloch.
He says that the necessary and proper clause gives the President Power. 
Textual: Uses the oath of office to say that he takes an oath to defend the constitution. Gets the power to second guess congress’ enumerated ends. 
Not emphasizing historical intent
Precedential Arguments: Argues against using precedent, uses precedent to support his questioning of the bank. Makes it seem like there is no clear consensus that the bank was appropriate. 
Focuses on structural arguments: makes arguments that the constitution protects the states’ sovereignty, different view of relationships within the federal gov’t, establishing himself as a constitutional interpreter. 
Ethical Argument-interpreting the constitution to protect the poor, the constitution is for the everyman. 
Prudential argument is usually more specific than Jackson’s ethical argument. 
2. Example of using the concept of natural law to make a constitutional argument.
Calder v. Bull
·         Case where court discusses natural law
·         There are some issues that are just central to the constitution so that they don’t have to be written
·         Property Rights
I. Natural Law-ethical
Idea that divine law can be used to interpret the constitution
Can be hard to convince people that your view of natural law should rise to the constitution’s natural law.
II. Human Rights Principles-ethical
Constitution can be interpreted to

JR as part of a system of checks and balances doesn’t really stand up, what you have is a ducking of authority. 
Problems with Countermajoritatiran difficulty:
Judicial review creates judicial activism
Judicial activism means judges using the power to create law, rather than just interpret.
Some say activism good—intend the constitution to be a living document and judges are the best at deciding how to implement the broad ideals of our changing society.
Some say activism bad—contrary to what the framers have held dear. 
Some have proposed Judicial Passivity
Judicial Passivity
Judges avoid deciding the law in many circumstances and leave much of the interpretations of the law to the more democratic branches.
Judicial Limits
1. Standing-Raines, Bush v. Gore, Roberts v. Wamser
2. Political Question Doctrine-Baker v. Carr, Davis, Nixon, Bush
Passive virtues? Passive Vices?
3. Countermajoritarian Difficulty
4. Law vs. Politics
Bush v. Gore
Judicial Limits External Political Limits-the fine print
1.     Constitutional Amendment Power-if you don’t like what the judges say the constitution can be amended. 
However, this is an uphill battle.
Debate about whether or not that’s a good way to respond because we want to preserve the independence of the judiciary.
2. Appointment Power-on the SC the other branches have role in appointing the judges.
·         How strong should these other branches be as a check on judicial power?
·         Can you really draw a clean line between political views and professional ability?
3. Impeachment-Justices can be impeached.
·         Never really been exercised.
4. S. Ct implements its own political checks. They follow the election returns.
·         They do respond to what the majority has to say.
·         They care because they want people to believe in their legitimacy.
·         Has to go along with the popular will because otherwise ill not be seen as legitimate
5. Constitution gives Congress ability to control jurisdiction.
Internal Constitutional Limits-there are 2-Article 3 Jurisdiction/Article 3 case/controversy
                A. Article III Jurisdiction
                                1. SMJ Jurisdiction-Federal Question, diversty
                                2. Original Jurisdiction vs. Appellate Jurisdiction
Ex Parte McCardle—constitutional limits on appellate jurisdiction
Facts: Right after civil war during reconstruction. System of Marshall law in the South. McCardle is challenging Habeus Corpus Laws-produce the body, a case that is challenging your continued imprisonment, has to be a legal reason you are in prison. McCardle files his petition under a federal statute. On the merits he want to challenge the reconstruction law. Wants to challenge the constutionality of his imprisonment. Files his Habeus petition. Congress then repeals part of the law that grants the appellate jurisdiction of the claim. Says the SC isn’t allowed to hear this particular case.
First Issue: Does the SC have jurisdiction over this case?
Constitutional Question: Can Congress remove appellate power from the court?
Rule: Looking straight at text of Article III. Congress has the power to make exceptions to the SC’s appellate jurisdiction. 
 Readings pages 145-46.
Mechanical Process of the courts. The court certioria jurisdiction rather than appellate. The court hears only a very small percentage of what is brought. They have discretionary jurisdiction. 
B. Article III Case or Controversy Requirement
                1. No advisory opinions
                2. Standing Rules: Have to have: injury, causation, redressability.
                3. Ripeness/Mootness: Not too soon, not too late
1. Must have standing to bring suit.
Allen v. Wright
Facts: Class action of parents of Black school children who want to challenge the fact that the IRS has failed to deny tax breaks to a school that was not integrated.
Issue: The IRS was violating a statute. IRS is not enforcing the statute.
Con Issue: Does these parents have standing to challenge the IRS practices.
Rule: Court says you have to have injury in fact, injury must be fairly traceable to gov’t action, and there must be redressability.
More Specific: