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Constitutional Law I
University of Mississippi School of Law
Cochran, George C.

Cochran, Spring 2005
There’s no executive branch immunity expressly written into the Constitution. But courts have recognized an implied executive immunity based on separation of powers concepts.
Absolute for President: The President has absolute immunity from civil liability for his official acts. Nixon v. Fitzgerald
There’s no immunity for the President’s unofficial acts, including those he committed before taking office. Clinton v. Jones
Art. I prohibits both the federal government and the states from passing any bill of attainder. A bill of attainder is a legislative act which “applies either to named individuals or to easily ascertainable members of a group in such a way as to punish them without a judicial trial. Some Examples:
Congress prohibits the payment of salaries to three named federal agency employees, on the grounds that they are engaged in subversive activities. This is an invalid bill of attainder, since it applies to named or easily-identified individuals, and punishes them without a judicial trial. U.S. v. Lovett
Congress passed a law that excluded from the waters of Prince William Sound any vessel that spilled more than one million gallons of oil into the marine environment after March 22, 1989, effectively barring the vessel owners’ vessel, which had previously spilled oil in the area, from operating in Prince William Sound. It was not considered a bill of attainder. Seariver Maritime Financial Holdings, Inc. v. Mineta
An act that made it a crime for a member of the Communist Party to serve as an officer of a labor union. Law was void due to bill of attainder. United States v. Brown
Three ways a federal law can regulate under the commerce clause: Lopez; Morrison
(1)   regulate the use of the channels of interstate commerce. Ex: Mann Act. Thus, Congress can regulate in a way that is reasonably related to highways, waterways, and air traffic. Presumably Congress can do so even though the activity in question in the particular case is completely intrastate. 
(2)   regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. This category refers to people, machines, and other “things” used in carrying out commerce.
o       Enterprise Concept, Maryland v. Wirtz
(3)   regulate those activities having a substantial relation to interstate commerce, Jones & Laughlin Steel, those activities that substantially affect interstate commerce.
o       Must distinguish between commercial and non-commercial things.
o       If Commercial, then these activities can be aggregated. Wickard
o       If Non-Commercial, then there will apparently have to be a pretty obvious connection between the activity and interstate commerce. Lopez; Morrison
                                                                          i.      Suppose the statute in Lopez by its terms applied only to in-school gun possession if the particular gun had previously moved in interstate commerce. This would pr

e excessive in relation to the cost incurred
To determine if a tax on interstate commerce is constitutional: Complete Auto Transit
(1)   Substantial nexus between state and what is taxed, Quill Corp. v. North Dakota – None Found
(2)   Fairly apportioned
(3)   Cannot discriminate against interstate commerce
(4)   Fairly related to services provided
Subsidy would always be constitutional. West Lynn Creamery, Inc. v. Healy
To determine if a safety regulation on interstate commerce is constitutional: Kassel
(1)   Did the legislature act rationally?
(2)   Are the benefits to the states outweighed by the burden on interstate commerce?
(3)   If the safety measures are not illusory, the courts cannot second guess legislative judgment about their importance on comparison with related burdens on interstate commerce.
A state law can discriminate out of state companies under the dormant commerce clause if it is a market participant, and not as a market regulator. Hughes v. Alexandria Scrap Corp., Reeves v. Stake
Differences between Commerce Clause and Article IV
(1)    Corporations are not protected under the PIC
While Congress may consent to state practices that would otherwise be