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Constitutional Law I
University of Denver School of Law
Scales, Ann C.

KINDS OF ARGUMENTS
Textual
Precedential
Originalist
Historical
Institutional Competence
Consequential

GOVERNMENT POWERS
Judicial Powers
Article III
Judicial Review
Marbury v. Madison (1803) (page 2)
“It is emphatically the province and duty of the judicial dept. to say what the law is”
The Supreme court gets the final say
Cooper v. Aaron (1958) (page 20)
Federal judiciary is supreme
Supremacy Clause Article VI
Supreme Court has power to review State Supreme court decisions
See Martin v. Hunter’s Lessee (1816) (page 17)
War powers*
Judicial Restraint
Deference to certain matters (foreign affairs and military matters)
Don’t have the power of the purse (congress) or the sword (executive

Congressional Powers
Article I Enumerated Powers
Commerce Clause*
Spending Power
Impeachment*
War powers*
14th Amendment (see equal protection analysis)
Necessary and Proper Clause (implied power to pass anything related to enumerated powers
McCulloch v. Maryland (1819) (page 63)
Have the power to create a national bank under the necessary and proper clause
Maryland cannot tax the bank because of the supremacy clause
Congressional immunity
State Sovereignty and the 10th Amendment
Commandeering the states legislative process
New York v. United States (1992) (page 134)
Whether an Act of Congress (under the commerce power) invades the province of state sovereignty
Cannot commandeer the states’ legislative process by directly compelling them to enact and enforce a federal regulatory program
Alternatives to commandeering the state: spending power, commerce power by directly regulating commerce, conditional preemption
The means is valid under the commerce clause, the means (commandeering the states is illegitimate)
Commandeering state executive branch officials
Printz v. United States (1997) (page 139)
Held invalid part of the Brady Handgun Violence Prevention Act that required state and local law enforcement officers to conduct the background checks

*Commerce Clause
Pre New-Deal
Gibbons v. Ogden (1824) (page 83)
Includes navigation
Direct v. Indirect test
United States v. E.C. Knight Co. (1895) (page 85)
The Substantial Economics Effects Test
The Shreveport Rate Case (1914) (pag

ities that have a substantial relation to interstate commerce (substantially affects test)
Distinguishing between economic (Wickard) and non-economic activity
Distinguishing between local and national interests
United States v. Morrison (2000) (page 116)
Role of congressional hearings-substantial testimony that violence against women affected interstate commerce
But it is a non-economic activity and its regulation is the province of the States (not a legitimate end)
Shift back to Substantially Affecting Commerce in the Aggregate
Principle that allows Congress to regulate activity that, taken in isolation, does not substantially affect interstate commerce, but would if multiple iterations
Gonzales v. Raich (2005) (page 119)
Drug control an legitimate government end
Court relied heavily on the aggregation principle in Wickard comparing home-consumed wheat to home-consumed marijuana