Select Page

Constitutional Law I
Thomas Jefferson School of Law
Herald, Marybeth

Constitutional framework:
            -Does congress have authority?
            -Is there a separation of powers problem?
            -If there is…
 
SPENDING POWER FRAMEWORK
JUDICIAL REVIEW
Maurbery
Arguments for judicial review:
            Text
-Const. vests judicial power in one S. Court extended to all cases arising under the laws of the U.S.
            -judicial oath
            Structure
            -essence of judicial power (checks and balances)
            Policy
-judiciary is better position to interpret because Congress makes laws
-judges are trained in the law
-S. Court justices are appointed for life for consistency
                        Intent
                        -framers intent for rule of court and legislature
 
 
POWERS OF THE FEDERAL GOVERNMENT
1.NECESESSARY & PROPER CAUSE
Congress has implied power to enact legislation that though not expressly enumerated id appropriate and necessary for executing an enumerated power as long as it is not prohibited by the Constitution.
 
Totality of Circumstances: Necessary and Proper
1.      Legitimate and
2.      Reasonable relationship between means and ends
3.      Means chosen not prohibited by Constitution
 
Enumerated powers in Article 1 sec 8 (taxing, spending, commerce)
 
Implied powers- “necessary and proper clause” must be attached to a enumerated power
 
Tenth Amendment:
      -Power not delegated to the U.S. by Const. is reserved for the States.
      -Art. Of Confed
 
States have no power to retard, impede, burden or control the operations of the constitutional laws enacted by Congress. Power is given to Congress.   
 
2. COMMERCE AMONG THE STATES (synthesized)
“Congress has the exclusive power to regulate interstate commerce between foreign nations, among the several states and with Indian tribes”
 
            Commerce Clause framework:
Comprehensive scheme- Reich
Economic- Pre 1995
Non- Morrison/ Lopez
 
            Rationale:
                        -use of channels, waterways
                        -protect instrumentalities (come from interstate activities)
                        -substantial relation to interstate commerce
 
            Comprehensive scheme (Reich)
-Can regulate purely intrastate (local) activity if failure would undercut the national market (Wikard)
Ex -If congress determines activity is an essential part of a larger comprehensive scheme
 
-Courts have no power to regulate trivial instances of individual class (Lopez)
            Ex: -Possession is not part of a comprehensive scheme
 
            Economic/ Non
 
                        -Court needs “rational basis” for regulating
                                    – If economic (Morrison) Court defers
      

                        -Tenuous linking is arguable
                                                -Coercive federal measures (withholding 5%+)
                                                -Violating equal protections
                                    4. Other Const. provisions may be a bar
 
 
4. TAXING POWER
            Sonzinsky
1.      If tax is productive of raising revenue, it is legitimate (A tax is only a penalty if it doesn’t raise money)
2.      Regulatory affect/ motive- irrelevant
 
3.   Cannot violate another constitutional provision.     
 
5. WAR TREATY POWER
            Cannot override the constitution
Congress can regulate local activities as a means of giving affect to a valid treaty (so long as it doesn’t violate the Const.)
 
Requirements:
                        1. Must conform/ be related to international law
                        2. Bill of rights cannot make treaty that violates 1st amend
 
Ex: Cannot make a treaty that prohibits people in this country from shipping books to other countries. It would violate people’s rights in this country