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Constitutional Law I
University of North Carolina School of Law
Marshall, William P.

Constitutional Law


Spring 2012

Legislative Power / State’s Rights

· Historically courts now (as opposed to 1930-1990) limiting Fed. power

o by 10th amendment (powers not granted to fed. gov’t or prevented from states are state’s)

· Defined by McCulloch v. Maryland – necessary and proper clause

o Courts have broad power to create legislation

o Fed. law established banks but states taxed, which fed. bank refused to pay

§ States have no power to impede or retard laws of the federal gov’t

§ Fed. gov’t has power to create what is “necessary and proper” for formation and continuation of fed. gov’t

· US v. Comstock – 5 reasons Congress has authority to enact civil commitment statute:

o Congress has broad legislative power

o Legislation close to historical legislation, which shows pre-existing federal interests

o Congress is custodian of prisoners

o Gives deference to state’s interest and doesn’t infringe on state powers

o Links between legislation and intent are strong – “congruency and proportionality”

· Reasons for state’s rights

1) Limit federal tyranny

2) states are closer to the people and know their needs

3) states are labs for experimentation on policy

Express Preemption of State’s Rights

· Cipollone v. Liggett – Courts must start with the assumption that state powers not to be superseded by federal regulation

o Congress may expressly preempt state law when there is no grant to state or fed. government in constitution

· Chamber of Commerce of US v. Whiting – Express preemption is based on congress’s intent using plain language of the statute

o State Immigration Law not preempted by federal law simply because parts of it were preemptive

Commerce Power

· 10th amendment limitations on federal action

o powers shrinking since 1990’s

· Congress has broad power to regulate commerce

o Gibbons v. Ogden

· EC Knight & Carter Coal draw distinction between manufacturing and commerce (travel of goods)

o Sugar refineries became monopolies but gov’t cannot sue b/c state police power

o commerce includes transportation, purchase, sale, and exchange of commodities (not making goods)

Among the States

· Houston, E/W RR defines as including intrastate vehicles that are used interstate as well

o dealt with train travel rates

· ALA Schecter says “direct effects” on interstate commerce apply to CC but “indirect” (like wages in a business that does interstate commerce) do not

o Was a chicken warehouse overworking and underpaying employees

· May also use “stream of commerce”, although not consistently

10th Amendment limiting federal power (or not)

· Argument at where 10th amendment powers lie

o Some argue no regulatory policy forced on state

o Some argue borders are with branches of gov’t (based on history, dissent in Printz)

No Limit – not current

· “Process federalism” – elected officials from states will rep. state interest in nation

· Hammer v. Dagenhart says congress cannot restrict police power of states

o Made interstate shipment of goods illegal if child labor was used

o Dissent says manufacture that crosses state lines IS within federal control and is OVERTURNED

· NLRB v. Jones & Laughlin says “close and substantial relation to interstate commerce” enough for federal connection

· US v. Darby says all aspects of businesses that engage in interstate commerce are subject to fed. reg.

· Wickard v. Filburn – wheat grown for personal consumption affects interstate commerce and is subject to regulation

o Congress can regulate threats to commerce

o Uses an “aggregation test” to see how much commerce will be affected

Limit – uses Carter Coal definition of commerce

· US v. Lopez – 3 ways congress can limit state commerce

o Use of channels of interstate commerce

§ Travelers (Heart of Atlanta)

o Instrumentalities of interstate commerce or people in interstate commerce, even if they only participate in intrastate affairs (Houston E/W R)

o Regulate issues having a substantial relation to interstate commerce

§ Aggregation test from Wickard v. Filburn only applies when base activity is economic

Federal Regulatory Program – 10th Amendment

· Congress cannot compel states to enact or use fed. reg. programs

o Cannot commandeer st

stent with letter and spirit of constitution”

o Was about not allowing Puerto Ricans to vote

· BUT City of Boerne says § 5 cannot create substantive rights – “congruency and proportionality” test

o Overturned congress free practice of religion law

o § 5 does not give congress the power to define rights beyond recognition of those rights / there must be a “congruency and proportionality” between the laws created and the effect they will have

Executive Powers

Those not enumerated

· Youngstown – Narrow interpretation of presidential power

o President cannot seize property in wartime

o “Zone of twilight” where there is a concurrence of congressional and prez. power but not in this case

· Executive privilege – prez. does not have to share advisory opinions

o Deals with separation of powers

Administrative Agencies

· Delegation of legislative power has been constitutional since ALA Schechter in the 1930’s

o Due to complexity of modern world

· Imm. & Nat. Services v. Chadha – SC declared leg. veto unconstitutional

o Congress cannot veto act of admin. agency

o By limiting fed. power, decision expands prez. power

· Congress power over admin. agencies

o Statutes

o Overturn agency decision

o Control budget

Appointment power

· President has con. power to appoint officers, ambassadors, and SC justices

· Morrison v. Olson – Congress has leeway to determine appointments of inferior officers

o IF 1) subject to removal by Exec. Branch official, 2) empowered to do only certain, limited duties, 3) Limited in jurisdiction, 4) Limited in tenure

o Special prosecutor appointed by courts was constitutional

· Congress cannot give itself or its officers appointment power