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Constitutional Law I
Temple University School of Law
Reinstein, Robert J.


3 Basic Principles of the Constitution


Treaty model: states get together form a union

Sovereignty remains with the states, except for problem delegated to Congress

Problem: depends on goodwill of the states which tends to break down.

National Model

National power is limited only by whatever prohibitions exist in the Constitution

Provinces (created within states) derive their power from the National Government

Problem: states concerned about an all powerful government

Federal Model (applied)

Federal laws can operate directly on individuals and federal government can operate their own laws

System of dual sovereignty: where a conflict arises, the Constitution and Federal apply (Supremacy Clause)

States can give rights that are broader but not narrower than the Constitution

Separation of Powers

Individual Rights


McCulloch v. MD (1819)

Facts:MD imposes a tax on federal bank up by Congress. Issue becomes whether Congress power to incorporate a bank (not specifically written in Constitution. Issue- whether creation of a national bank is truly “necessary and proper” to carry out the powers given?

Holding: there are IMPLIED powers in the Constitution under enumerated ones; and Marshall takes a broad view of “necessary and proper” to define necessary=useful. Unconstitutional because: tax had punitive intent and violates Supremacy Clause.

Up to Congress to decide what is necessary and proper and not the judiciary- an opinion of extreme judiciary restraint.

10th amendment does not limit the powers of Congress because it never refers to the powers “expressly” enumerated to Congress in the Constitution.


The Veto Power (Article 1, Section 7)

Can veto any law, but can be overridden by 2/3 of House of Representatives

This power makes the President part of the legislative process; a law cannot become a law unless passed by the President. Constitution does not state which reasons President needs for vetoing, only that he must state them

This power is a breach of the separation of powers; evident that there isn’t a pure separation of power as required by the Constitution; part of checks & balance

Commander in Chief (Article 2, Section 2)- Although the President controls the army, he cannot create the army himself. This power is vested in Congress to raise and support the army

Grand pardon reprieves- but only for federal crimes

Make treaties- but needs 2/3 consent of the Senate

Appointment power (nominate)B – but needs consent of Senate

Receive foreign diplomats- can be a power or formality because serves as recognition of other states

Make sure the laws are executed

Youngston Sheet & Tube Co. v. Sawyer(1952)

Facts:middle of Korean War, steel proposes strike that will paralyze war, President Truman issues executive order requiring seizure of mills. Sends letter to Congress telling them what he did and agreeing to abide by whatever decision they made. The issue: whether the President was acting within his Constitutional powers when he directed the sec. of Commerce to take possession & operate steel mills.

Holding: Majority – power only from statute or Constitution; neither one present. Suggests that there are no implied Presidential powers within the Constitution.

There are three way to rationalize the president’s power (Jackson- MINORITY which SC has adopted as the governing rule)

President acts with express or implied authority from Congress (President’s power is at a maximum)

President acts on his own- acts in absence of implied Congressional grant or denial of authority

President acts contrary to expressed or implied rules of Congress (powers at a minimum)

Jackson- case falls within third category because President is acting contrary to implied will of Congress- congress never passed a law stating that President cannot seize steel mill; implied with a lot of emphasis on fact that Congress rejected amendment to Taft-Hartley act giving the President power to seize

DISSENT (VINSON): There is no law stating President can’t seize mills; Congress had declared war and President using powers under Take Care Clause to exercise laws that have been faithfully executed.

There is substantial legislation authorizing the war in Korea, where although not a declared war, it is authorized by Congress.

If steel workers go on strike, Congress’ legislative scheme will far apart, and it is President’s duty to “execute the foregoing legislative programs.” This is the means that the President has found to execute the laws that have been faithfully executed- ENDS JUSTIFY THE MEANS

US v. Curtiss-Wright (1936)

Facts: Roosevelt issues an order prohibiting sale of arms countries involved in Chaco border dispute. Company indicted of violating; issue: whether such a resolution is vulnerable to attack under the rule that forbids delegation of the lawmaking power

Holding:No, because falls under Presidential powers in regulating foreign affairs. It was not Congress’ right alone to pass laws; when it comes to Int’l affairs President doesn’t need Congress’ permission as long as he is acting within the Constitution.

Dames and Moore v. Regan, Secretary of the Treasury(1981)

Facts:Embassy seized, in consideration for release of hostages, President agrees to drop all litigations against Iranians in the US are dismissed, and including judgments Americans had already received. President ordered courts to obey. Issue: whether President had power to do this

Holding:Congress has implicitly approved the practice because they have done so historically (under Claims Settlement Act). Falls under 1st Category of Jacksons opinion in Youngston. Internationally, treaties act same as statute; but hard say what domestic effect they have.


District of Columbia of Columbia v. Heller (2008)

Facts: DC passes law that can’t own handgun and if you have one, it has to have a trigger lock at all times.

Holding: Statute is unconstitutional. Splits up 2nd amendment in two clauses:

Purpose: a well regulated militia may be necessary for security of free state

Operative: the right of the people to keep and bear arms shall not be infringed

For every rule of statutory construction there is a counter rule that if language of the law is clear, then you just want to make sure that the purpose clause is consistent with it

Issue: does “people” mean individual or collective. Scalia- in other amendments people has meant individual, there is no reason to apply differently here.

Dissent (Stevens): people means “collective.” Assumes 2nd amendment passed to prevent Congress from disarming militia; points out “keep and bear arms” prior the Constitution stated that keep and bear arms for the common defense (Massachusetts model). Second model was “keep and bear arms for common and personal defense.” Fact that the State chose the first over the latter is evidence that States wanted to limit right to militia.

Breyers: Scalia is correct, but seeks to harmonize two ends. Governmental interest should be balanced with the interest it has on self defense. Scalia believes this approach would simply allow for Judges to impose their own policies into constitution.

REINSTEIN- both dissent and majority wrong; “people” is used throughout constitution and BILL OF RIGHTS to mean both.


Marbury v. Madison (1803)

Facts:Jefferson ordered Madison to not deliver commissions for appointees of Justices of Peace from Adams’ presidency. Marbury files a lawsuit directly to Supreme Court for a writ of mandamus. Issues:

Were Marbury’s rights violated?

Is there a legal remedy?

Can Supreme Court provide remedy: NO

Holding: SC can’t provide remedy because Marbury has to go through state courts. However, Court has power over President because justices decide cases based on Constitution and where a statute conflicts with the Constitution, the Constitution always wins. Another reason why SC has power to declare laws Unconstitutional is to provide uniformity in deciding cases and Justices are guardians of rights.

Implied power of court: their decisions are always binding

Martin v. Hunters Lessee (1816):SC can review state court judgment because if Congress didn’t enact federal lower courts, then the Supreme Court would only have original jurisdiction and not appellate like the Constitution. Provides that SC has power to adjudicate/has jurisdiction over ALL cases arising under federal law.

Cohens v. Virginia(1821):SC can review criminal defendants cases if they claim their conviction violates the constitution because they don’t trust states to protect federal rights

Pre- 1937:local authorities can be regulated only when the act has a direct effect on interstate commerce; production activities are not included.

Congress can’t regulate interstate commerce for perpetual reasons to further Congressional opinions of morality

Commerce Clause cannot be used to regulate production of goods (or regulate child labor where concern is the local production of goods- this is power left to the States under the 10th amendment).


Limitations on the Commerce Power

Gibbons v. Ogden (1824)

Facts: Fulton (inventor of steamboat) and Ogden was given monopoly by state law over NY waters. Gibbons got license to run steamboat from federal government. ISSUE: whether NY license (Ogden’s) supersedes federal license (Gibbons’) under 10th amendment?

Holding:Marshall- starts off by defining commerce, says it’s not only selling and trading but includes commercial navigation. Since navigation affects other states (INTERstate) Congress can regulate under Commerce Clause.

ce. If RATIONAL BASIS for Congress to assume that local activity will have a SUBSTANTIAL effect in the aggregate, then can regulate.

Court looks at cumulative effect- if Filburn can do it, all farmers can.

While this is not commerce, it is NECESSARY AND PROPER to regulate in order to protect commerce

Line of inquiry in these cases

Does government have the authority?

If it does, does it violate some other constitutional provision?

This inquiry is the first approach to 10th Amendment.

United States v. Darby (1941)

Facts: violated fair labor standards act which limits the amount of goods that can be shipped in interstate commerce if employer violates minimum wage and labor laws. Overrules Hammer. Issue: is production commerce?

Holding: Congress can eliminate local indirectly activities by limiting interstate commerce; expansion of Commerce Clause. Only Congress can fix these issues because if states pass laws individually businesses would leave because cost will rise. No concern for motives, okay as long as Congress as long as Congress regulating interstate commerce.

United States v. Stanley(1883)

Facts: Stanley was indicted for violating the Civil Rights Act of 1875 (this is the first public accommodations law) by denying a person of color the accommodations of an inn/hotel. Other parties were Ryan and Singleton who refused to allow a person of color a seat in the dress circle of a theatre and for denying a colored person “full enjoyment” of the Grand Opera in NY

Holding: 14th Amendment doesn’t give Congress the authority to pass it; it only gives Congress the right to adopt legislation to counter State laws that are prohibited by the Constitution. Congress doesn’t have the power to legislate upon subjects, only to provide modes of relief against legislation or state action that is prohibited by the Constitution.

Heart of Atlanta Motel, Inc. v. United States(1964)

Facts: hotel doesn’t allow Blacks to stay in violation of Civil Rights

Holding: their disallowance of Blacks unconstitutional; 70% of guests are from out of state, therefore part of interstate commerce. Doesn’t matter what Congress’ motives are, if they think it’s an illegal practice, can use interstate commerce to get at it.

Katzenback v. McClung Sr. and Jr.(1964)

Facts:family owned restaurant, take-out for Blacks, sit-in for Whites. Defendants argue that allowing Black people in will force them to lose customers. Issue: can Congress regulate under commerce clause.

Holding: Practice is unconstitutional under Civil Rights Act because detract from businesses motives to move to those places because Black employees would be subject to horrible living conditions. Also said that if they can regulate child labor, then Congress has power to regulate racial discrimination.

NOTE: Article I, Section 9 – Framers envisioned that Congress would be able to use Constitution eventually to end racial discrimination

Hodel v. Indiana(1981)

Facts: federal law that regulated strip mining and required reclamation of strip-mined lad

Holding: The court will defer to Congress unless there is NO rational basis for them to regulate interstate commerce. Beginning of rational basis test.

There must be a showing that regulated activity has a SUBSTANTIAL effect on commerce.

Perez v. US(1971)

Facts: Federal statute made loan sharking a federal crime

Holding: this is Constitutional, loan sharks affect interstate commerce because it affects the poor and real loans, and therefore there is a rational basis for Congress to try to quash it.

DISSENT:any crime can affect interstate commerce, so why can Congress regulate any?

FOUR standards for regulating interstate commerce

Channels of interstate commerce used to commit crimes (ie: shipment of stolen goods)

Protection of instrumentalities of interstate commerce (ie: destruction of aircraft)

Activities affecting interstate commerce

If law is within commerce power, it does not violate 10th amendment