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Constitutional Law I
University of Connecticut School of Law
Spencer, Douglas M.

Article III, § 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the U.S., and Treaties made, or which shall be made, under their authority…to controversies to which the U.S. shall be a Party
Meaning: Federal courts will decide arguments over how to interpret the Constitution, all laws passed by Congress, and our nation’s rights and responsibilities in agreements with other nations. Federal courts can hear disputes that may arise between states, citizens of different states, and between states & the federal gov’t. Cases not within scope cannot be heard by a federal court.
Marbury v. Madison: established that Federal Courts possess the power of judicial review (of both federal executive and legislative acts)
Established that Article III = ceiling of federal court jurisdiction à limited jurisdiction
Expanding the Court’s power = unconstitutional
Federal courts cannot create cases on their own – even if law is maybe unconstitutional
Article I §8: creates the federal legislative power; describes the design of the legislative branch of the gov’t (Congress)
Congress can only act if there is express or implied authority from Constitution
10th Amendment: powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the States or the people
Question #1: Does Congress have authority under the Constitution to legislate?
Question #2: If yes, does the law violate another constitutional provision or doctrine, such as infringing separation of powers or interfering with individual liberties?
McCulloch v. Maryland: State tried to tax solely the Bank of the U.S.; defined scope of Congress’s powers & defined relationship between federal government and the states
Key: Congress may enact laws that are necessary and proper to carry out their enumerated powers (establishing a bank . The Constitution = supreme law.
State laws cannot interfere with federal laws enacted within the scope of the Constitution.
i.e. A state may impose an ordinance on all buildings (cannot solely impose it on federal buildings)
Necessary and Proper Clause (Article I §8) – Test:
Let the ends be legitimate
Within the scope of the Constitution
All means, which are appropriate, not prohibited by the Constitution
Necessary and Proper Clause is not a limitation – Congress has the power to use any means, not prohibited to carry out authority
Interpreted broadly
U.S. v. Comstock: Congress has the authority to hold the mentally ill and the sexually dangerous past their maximum prison sentences under the Necessary and Proper Clause. Argument that civil commitment is an exercise of state police power (dissent).
Timeframe – four eras of Commerce Clause:
Early history to 1890s – commerce power was broadly defined but minimally used
1890s to 1937 – Court narrowly defined scope of Congress’s commerce power and used 10th Amendment to limit this power – independent constraint on congressional authority
1937 to 1990s – Court expansively defined the scope of the commerce power and refused to apply the 10th Amendment as a limit
1990s to now – Court narrowed the scope of the commerce power and revived the 10th Amendment as an independent, judicially enforceable limit on federal actions
Gibbons v. Ogden (1824): defines commerce as intercourse among (intermingled with) states; steamboat monopoly case
Does not stop at external boundary line of the state but can penetrate into the interior – “commerce is traffic but also intercourse”
Navigation and traffic of goods and commodities = commerce
Among several states = intermingled with
Commerce Clause
Type of Power
What it is
Channels of Interstate Commerce
Test: whether intrastate conduct substantially affected interstate commerce
(complete power)
Restrict shipment of goods, regulate terms and conditions of which goods
Gibbons v. Ogden;
Heart of Atlanta Motel
Instrumentalities of Interstate Commerce
Test: intrastate commerce must directly affect interstate commerce; if indirect then power given to states
(complete power)
Trains, planes, etc.
Shreveport Rate Cases; Schechter v. U.S.
Substantial Effect on Interstate Commerce
Test: Aggregate Principle; whether intrastate commerce
burdens or obstructs interstate commerce or the free flow of commerce; substantial effect
Not Plenary
Everything else
NLRB v. Jones; Darby; Wickard; Morrison; Raich
Dual Federalism (1890-1937; Industrial Revolution) – view that:
1.) federal and state governments = separate sovereigns
2.) each had separate sovereigns
3.) each had separate zones of authority
4.) judicial role to protect states by interpreting & enforcing Constitution to protect activities reserved to states
Shreveport Rate Cases: intrastate railroad rate case à regulation allowed – must directly affect interstate commerce
Instrumentalities of Interstate Commerce
Schechter Poultry v. U.S.: insufficient effect on interstate commerce
Federal gov’t has authority to regulate direct effects on interstate commerce (indirect effects are within the domain of state power)
“Sick Chicken case” – unable to prove direct relationship to interstate commerce
Ability to regulate indirect effects would involve all activities of people and the authority of the State
10th Amendment reserved control of activities – mining, manufacturing and production to the states
Focus = production (i.e. labor hours = state regulation)
The Child Labor Case: Law only regulated goods in interstate commerce but declared unconstitutional because it controlled production
Regulation of labor hours = state authority
The Lottery Case: power to regulate interstate commerce includes prohibition of goods traveling interstate
New Deal (1937-1990s): Broad Federal Commerce Power
Court-packing Plan – threat to independence of the federal judiciary/independence
Expansively defined scope of commerce power to Congress & 10th Amendment rejected as a limit
NLRB v. Jones & Laughlin Steel Corp.: abandoned direct vs. indirect – applied “close and substantial relationship” test
Even if activities may be intrastate in character, if they have a close and substantial relationship to interstate commerce then Congress cannot be denied the power to exercise
Affecting Commerce = burdening or obstructing commerce or the free flow of commerce
U.S. v. Darby: if a prohibition on interstate shipment was designed to compel in-state manufacturers to adopt federal standards and even if the prohibition had that effect – the law was constitutional as long as it regulated interstate commerce
Substantial effect on interstate commerce à power from commerce clause and necessary & proper clause
Wickard v. Filburn: where the actions of a class of persons would have a substantial effect on interstate commerce, Congress can regulate the actions of an individual because of the cumulative effect those individuals would have; Aggregation Principle
Economic/Commerce (all stages of production) à aggregation
Purpose of Act: increase the market price of wheat & limit volume that could affect the market
Civil Rights and the Commerce Clause
CRA of 1964: prohibits private employment discrimination based on race, gender, or religion
Forbids discrimination by places of public accommodation
Heart of Atlanta Motel v. U.S.: Congress could reasonably conclude that racial discrimination by motels serving interstate travelers substantially affected interstate commerce. Channels of Interstate Commerce
Matter of policy in Congress (not the courts) = within the power granted
Katzenbach v. McClung: Congress could reasonably conclude racial discrimination by restaurants = effect on economy
Burden on interstate commerce (even though indirect) was sufficiently substantial to allow regulations
Regulatory Laws
National League of Cities v. Usery: Violated 10th Amendment – interfered with traditional state & local gov’t functions
Court did not define “traditional government function”
Effects on forcing payment of min. wage – violates the 10th Amendment
Hodel v. Virginia Surface Mining & Reclamation Assoc.: Usery only applied when Congress regulated state governments
Some activities may be so private or local in nature that they may not be commerce
Instead, must show that regulated activity had a substantial effect on commerce
How to show federal law violated 10th Amendment – law needed to:
1.) regulate “the States as States”
2.) address matters that are indisputably attributes of state sovereignty
3.) directly impair the States’ ability to structure integral operations in areas of traditional gov’t functions
4.) not be such that the nature of the federal interest justifies state submission
Garcia v. San Antonio Metro Transit Authority: states must be free to engage in any activity that their citizens choose
Both principle of federalism & the 10th Amend. will not trump an otherwise legitimate exercise of national power
Limitation on federal government = one of process (rather than result)
Overrules Usery – gave too much power to the judiciary
U.S. v. Lopez: Gun-Free School Zones Act – too weak of connection among gun-free school & interstate commerce
Activity regulated has to be commercial or economic in nature or part of a larger regulatory framework
Inference is not enough – can’t determine what is truly national or local
Created the three types of activities:
1.) Activity Regulated has to be commercial or economic in nature or part of a larger regulatory framework
2.) Jurisdictional Hook – Congress includes clause in act recognizing intrastate regulation for interstate commercial purposes
3.) Findings – not necessary, but factual support for the relation to interstate commerce is helpful for the court
U.S. v. Morrison: not economic and too far removed from interstate commerce for a substantial effect – no jurisdictional hook, slippery slope argument; non-economic = no aggregation
Gender-motivated crimes of violence are not economic activity – would allow Congress to regulate any crimes as long as the impact has substantial effects
Gonzalez v. Raich: constitutionality of the Controlled Substances Act – use of aggregate effect to regulate personal production of weed in California; Aggregation Principle (covers all stages of production)
Economic: the production, distribution, and consumption of commodities
Activity can be economic even if it is not commercial – part of a larger regulatory scheme
Revival of 10th Amendment
Gregory v. Ashcroft: 1st indication of the revival of the 10th Amendment – S.C. didn’t use the 10th Amendment to invalidate the federal law
Used the 10th Amendment and federalism considerations as a rule of construction
Ruled that a federal law that imposes a substantial burden on a state gov’t will be applied only if Congress clearly indicated that it wanted the law to apply
New York v. U.S.: coercive invasion of state sovereignty violated principles of federalism and the 10th Amendment
Congress cannot force a state to implement a federal regulatory scheme
Cannot use the states as a regulatory agent for federal regulatory policy
Distinction between enticement and coercion – coercion is not allowed
Printz v. U.S.: Brady act violated principles of federalism and the 10th Amendment because it imposed federal administrative duties on local law enforcement officers – principles of separate state sovereignty
Congress cannot avoid New York v. United States by conscripting officers directly
Not monitoring a transaction (unlike Reno)
Federal government may neither issue directives requiring the states to address particular problems, nor command the states’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program

eral statute criminalized bribery by state, local, or tribal officials of entities that received over $10k in federal funds
Whether Congress could rely on spending to then criminalize the conduct of a private party
Congress has authority under the Spending Clause to appropriate federal monies to promote the general welfare
Under the Necessary and Proper Clause – Congress has power to see that taxpayer dollars are spent for the general welfare
Necessary and Proper Test (not coercive; clear; and related):
General Welfare: left to congressional discretion for the most part
Clear Statement:
States need to be aware of the consequences of their participation; must be stated unambiguously
Accountability – action by states must be voluntary
Conditions Related to Federal Interest: has to be legitimate a federal purpose for the spending to be related to the regulation
No Constitutional Bar: cannot attempt to violate the constitution through state action
Limit on funds should not coerce:
When funds represent such a large % of a state’s budget that they feel forced to accept the grant
Congress should have a say in how money is spent
South Dakota v. Dole: Congress has the authority to tax and to make expenditures whenever doing so will be beneficial to the common defense or general welfare of the nation; 5% of highway funds ≠ coercive
Congress may attach conditions on the receipt of federal funds and can employ the power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory & administrative directives
NFIB v. Sebelius: strike down an Act of Congress only if the lack of constitutional authority to pass the act in question is clearly demonstrated; 20% of overall state budget = coercive; two issues:
Individual Mandate:
Not justified under commerce clause because inactivity ≠ commerce
Not justified under necessary & proper clause because not connected to an enumerated power
Justified under tax provision – not a penalty because refusal to purchase health care wasn’t criminal and failure to buy health care = tax penalty
Medicare Expansion: federal gov’t cannot withhold Medicaid funds if states refused to offer the expanded Medicaid à would be coercive and violates changing provision
Even though Congress may not be able to regulate a local activity (does not substantially affect interstate commerce) – Congress may tax that activity or spend money to encourage it à as long as promoting general welfare
Pennhurst v. Halderman: if Congress intends to impose condition on grant of federal money must be unambiguously
Article I vs. Article II:
Article I is narrower à all legislative powers vest in Congress
Article II is broader and more inclusive à executive power vested in President
Inherent Presidential Power:
If president has explicit constitutional authority – issue is whether the president is acting within the scope of the granted power and whether the president is violating some other constitutional provision
If there is a statute authorizing president’s conduct – issue is whether that law is constitutional
U.S. v. Curtiss-Wright: the non-delegation doctrine does not bar Congress from delegating great authority and discretion to the President in the conduct of foreign affairs; foreign policy – President has “plenary” (complete) powers over foreign affairs
President has broad authority to conduct foreign affairs – includes the power to enter alliances, establish principles of international law in concert w/ other nations, and engage in hostilities up to and including war
Youngstown Sheet & Tube v. Sawyer: President Truman seized steel mills during Korean War due to labor strikes
Court held that there were no inherent presidential powers – order cannot stand
Presidential war powers only apply within the “theater of war”
No statute expressly conferred the president the power to seize the mills
Criteria of Domestic Policy:
If expressed/implied congressional authority – President’s act = valid
Twilight Zone – Congress has been silent then depends on circumstances
Express/Implied Congressional Disapproval – President’s act = invalid
Dames & Moore v. Regan: President has power to enter into executive agreements without obtaining the advice and consent of the Senate
History of acquiescence by Congress – implicitly approves of President’s actions in subject matters which congress was silent
Showed application of presidential power
Executive Privilege: ability of the president to keep secret conversations with or memoranda to or from advisors
Presidents contend that executive privilege is necessary to receive candid advice
U.S. v. Nixon: Court rejected Nixon’s assertion of absolute executive privilege