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Constitutional Law I
University of South Carolina School of Law
Brown, Josie F.

Constitutional Law 1, Brown (Spring 2010)
Table of Contents                                                                                                                                                        
Chap 1: Judicial Review
                Congressional Limits
                                Advisory Opinions
                                Cxnal Standing, Injury in fact
                                Prudential Standing
                                                Third Party Standing
                                                General Grievances
                Political Question
Chap 2: Federal Legislative Power
                Commerce Power
                                Phase 1
                                Phase 2
                                Phase 3 – Today
                Taxing and Spending Power
                Suits v. States
Chap 3: Federal Executive Power
                Inherent Powers
                                Executive Privilege
                Non-Delegation Doctrine
                Legislative Veto
                Appointment Power
                Removal Power
                Foreign Policy
                Checks of the President
Chap 4: Limits on State Regulatory & Taxing Pwr
                Pre-Emption of State and Local Laws
                                Express Preemption
                                Implied Preemption
                                                Conflict Preemption
                                                Impedes Federal Objective
                                                Federal Laws Occupy Field
                Dormant Commerce Clause
                                Contemporary Test
                                Facially Discriminatory Laws
                                Facially Neutral Laws
                                Exceptions to DCC
Chap 5: Protection of Civil Rights
                Private Conduct
            Exceptions to the STATE ACTION DOCTRINE
                                Public Function Exception
Entanglement Exception
Entwinement Exception
Chap 6: Economic Liberties
                Lochner Era
                Post 1937 : NOW
                                CONSTITUTION SUMMARY                                                                                                                                        
Article 1: Legislative Branch: the U.S. Congress makes the laws for the United States. Congress has two parts, called             “Houses,” the House of Representatives and the Senate.
Article 2: Executive Branch: the President, Vice-President, Cabinet, and Departments under the Cabinet Secretaries carry out the laws made by Congress.
Article 3: Judicial Branch: the Supreme Court decides court cases according to US Constitution. The courts under the Supreme Court decide criminal and civil court cases according to the correct federal, state, and local laws.
Article 4: States’ powers: States have the power to make and carry out their own laws. State laws that are related to the people and problems of their area. States respect other states laws and work together with other states to fix regional problems.
Article 5: Amendments: The Constitution can be changed. New amendments can be added to the US Constitution with the approval by a two-thirds vote in each house of Congress (67, 281) and three-fourth vote by the states (38).
Article 6: Federal powers: The Constitution and federal laws are higher than state and local laws. All laws must agree with the US Constitution.
Article 7: Ratification: The Constitution was presented to George Washington and the men at the Constitutional Convention on September 17, 1787, Representatives from twelve out of the thirteen original states signed the Constitution. From September 1787 to July 1788, the states meet, talked about, and finally voted to approve the Constitution.
The Twenty-seven Amendments to the US Constitution
1st People have freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and the right to petition the Government. 1791.
2nd People have the right to have a weapon to protect themselves. 1791.
3rd Soldiers cannot take or live in a person’s house. 1791. 
4th The government cannot arrest a person or search their property unless there is “probable cause.” 1791. 
5th The government must follow the law (due process) before punishing a person. 1791. 
6th A person has the right to a fair and speedy trial by a jury. 1791. 
7th A person has the right to a jury trial for civil cases. 1791. 
8th The government cannot demand excessive bail or fines, or any cruel and unusual punishment. 1791. 
9th The Constitution does not include all of the rights of the people and the states. 1791. 
10th Any powers that the Constitution does not give to the federal government belong to the states. 1791. 
11th Citizens cannot sue states in federal courts. (There are some exceptions). 1795. 
12th The President and Vice President are elected on a party ticket. 1804. 
13th Slavery is illegal in the United States. 1865.
14th Every person born in the USA is a citizen. An immigrant can become a naturalized citizen. 1868
15th All US male citizens have the right to vote. 1870. 
16th Congress can tax income. 1913. 
17th The people can elect US Senators. 1913. 
18th Alcohol is illegal. (Prohibition). 1919. 
19th All US female citizens have the right to vote. 1920. 
20th The President is inaugurated in January. Congress begins to meet in January. 1933. 
21st Alcohol is legal. Each state can make laws about making, selling, and drinking alcohol. 1933. 
22nd The President cannot serve for more than two terms. 1951. 
23rd The US Citizens in the District of Columbia have the right to vote for President. 1961. 
24th It is illegal to make a citizen pay a voting fee or take a reading test to vote. 1964. 
25th If the president dies or cannot serve, the vice-president becomes president. If both die, the Speaker of the House becomes president. 1967. 
26th US citizens who are 18 years old or older have the right to vote. 1971. 
27th Congress must limit when and how much its members are paid. 1992.
Marbury v. Madison:Congress cannot expand the original jurisdiction of the Court
Martin v. Hunter: S.C. can review state CIVIL cases
Cohens v. Virginia: S.C. can review state CRIMINAL cases
                US v. Miller: look to framer’s intent
                US v. Emerson: 3 types of interpretatxn: individual; limited; collective(choose Ind.)
                Silveira v. Lockyer:  rebuts Emerson, choose collective rights theory
III. CONGRESSIONAL LIMITS (Cong. Redefining jxn of Cts.)
                Ex Parte McCardle: Cong. Can limit APPELATE JURISDXN, but not ORIGINAL
                US v. Klein: Congress cannot direct the outcome of a case through laws
                Robert v. Seattle Audubon: same
                ADVISORY OPINIONS : hear “cases and controversies,” not act as advisors
                                Nashville v. Wallace: must bereal, not hypothetical controversy
                                Hayburn’s case: UNCXNAL
                                Plaut v. Spendthrift Farms: Cong. Cannot pass laws that re-open cases already decided
                CXNAL STANDING: “Injury –in-fact”
                                Allen v. Wright: general grievances not enough
                                City of LA v. Lyons: injunction requires potential for personal recurrence
                                Lujan v. Defenders of Wildlife: injury must be concrete not speculative
                                US v. Hayes:  must actually be harmed (can’t sue for neighboring town)
                                Fed. Election Comm’n v. Akins: standing in statute
                                Linda R.S. v. Richard D: S.C. need causation/redress
                                Warth v. Seldin:  same
                                Simon v. Easter KY Welfare: same
                                Duke Power v. Carolina Env. Study Group: standing had
                                Mass v. EPA: STATES- special standing, more lenient; Dissent
Singelton v. Wulff: 3P P must be proper proponent of legal rights
                                                Barrows v. Jackson: if impossible for actual injured P to sueÞ ok
Craig v. Boren: if injured P’s rights bound up with P’s econ successÞ ok
Gilmore v. Utah: if injured P waives rightsÞ no standing
Elk Grove Unif. School Dist. v. Newdow: no claims based on family law rights, Dissent
                                                Flast v. Cohen: EXCEPTION- when general grievance can sue
                                                US v. Richardson:  fails Flast test
                                                Schlesinger v. Reservists Committee: same, Dissent: gov’t unchecked
                                                Valley Forge : same, Dissent
                                                Poe v. Ullman: criminal statute not enforced is not ripe, Dissent
                                                Abbott Labs v. Gardner: test for pre-enforcement adjudication
                                                United Public Workers v. Mitchell: fail Abbott test
                                                Int’l Langshorement v. Boyd: same, cannot presume how law would be enforced
                                                Regional Rauk Reorganization Cases: if inevitable enforcement Þ standing
                                                Lake Carriers Assn. v. MacMullan: same
                                                Moore v. Ogilvie: (1) capable of repetition but evading review
                                                Roe v. Wade: same
                                                DeFunis v. Odegaard: repetition must involve P (ex. never again law school applicant)
                                                Friends of Earth v. Laidlaw: (2) voluntary cessation
                                                US Parole v. Geraghty: (3) Class actions: remaining can appeal even if leader mooted
                VI. POLITICAL QUESTION
                Luther v. Borden: Political Question- best to leave to other branches
                Baker v. Carr: 6 Baker Factors – the more yeses Þ political question doctrine, Dissent
                Vieth v. Jubilerer: application ofBaker factors Þ no majority opinion
                League of United Latin American Citizens v. Perry: ?
                Powell v. McCormack: Cong. Self-governance- Cong. Cannot expel members w/o 2/3
                Goldwater v. Carter: Ct. reviews not create meaning where cxn silent, that’s exec/leg.
                Nixon v. US: Ct. cannot review impeachment procedure
McCulloch v. Maryland: Cong. has implied pwrs too
                Gibbons v. Ogden: federal act triumphs state law
US v. EC Knight: Production & Manufacturing aren’t Commerce Þ Cong can’t regulate
                                Carter v. Carter coal: same
                                Houston East and West Texas Railroad v. US:  can regulate intrastate if nec. to reg. interstate
                                A.L.A. Schechter Poultry Corp. v. United States: end point of commerce cannot be regulated
                                                                —-(10th Amendment)—–
                                Champion v. Ames: Commerce power regulation includes prohibition
                                Hammer v. Dagenhart: cannot regulate bc harmful, unless product is harmful, O-DARBY below
                                NLRB Jones & Laughlin Steel: can regulate production and anything affecting commerce (broad)
                                US v. Darby: OVERRULES HAMMER; promotes substantial effect theory
                                Wickard v. Filburn: Aggregation theory
                                Heart of ATL v. US: substantial effect onIC + “econ” activity = Congress can regulate
                                Katzenbach v. McClung: local activities can be under commerce
                                Holden v. Indiana: Cong must have RATIONAL BASIS to consider s.t. commerce
Perez v. US: can regulate if activity = “one wing” of national operations (ie. organized crime)
                                                                —-(10th Amendment)—-
                                Nat’l League of Cities v. Usery: cant tell state how to regulate its business – O-GARCIA
                                Garcia v. San Antonio Metro Transit: OVERRULES USERY, Can regulate states businesses
                        **US v. Lopez: MODERN TEST FOR COMMERCE CLAUSE
                                US v. Morrison: gender discrim cot affect commerce, Dissent: look at cong’s evidence!
                                Solid waste v. US Army: look to congress’s intention in passing the act, read as written
                                Pierce County v. Guillen: road construction = channel of interstate commerce
                                Gonzales v. Raich: Only need RATIONAL BASIS
                                                                —(10th Amendment – encourage not coerce!)—
                                NY v. US: Congress may encourage but not COMPEL states to comply, need “meaningful choice”
                                Printz v US: difference bw reg. US citizens and telling states how to regulate their citizens
                                Reno v. Condon: telling state TO DO s.t.= not ok, telling states not to do s.t = ok
US v. Butler: need connection to enumerated right, no longer
                Stewart Machine Co. v. Davis: must be applied uniformly, non-arbitrary, and serve a legit gov’t purpose
                South Dakota v. Dole: Three part test – when spending is valid
                Sabri v. US: Congress can create laws promote/protect general welfare and taxpayer $
                                (how Congress can REACT)
                US v. Morrison: 14th Amendment
                Katzenbach v. Morgan & Morgan:“appropriate” may mean ‘necessary and proper”
        **City of Boerne v. Flores: act must only be IN RESPONSE to state axns & NO BROADER than                                                      necessary; must be “congruence and proportionality” bw injury and remedy + pattern
III.CONGRESS’S PWR TO AUTHORIZE SUITS V. STATES (standard + cong/prop+pattern)
Fitzpatrick v. Bitzer: Cong can authorize suits v non-consenting states when acting pursuant to the 14th A
                Seminole Tribe of FL v. FL: when Congress can abolish state sovereignty TEST!
                Florida Prepaid v. College Savings Bank: response must be “congruent/proportional” (see Boerne)
                Kimel v. Florida Bd. Of Regents: age based discrim. = rational basis test
                Bd. Of Trustees of Univ. of Alabama v. Garrett: disabilities = rational basis
                                                —-(discrimination based)—-
                Nevada Dept. of Human Resources v. Hibbs: gender discrim = intermediate scrutiny
                TN v. Lane: rational basis overcome v. fundamental right
                Alden v. Maine: congress cannot subject non-consenting states to private suits for damages
Youngstown Sheet and Tube Co.: JACKSON CONCURRENCE
Executive Privilege
US v. Richard Nixon: confidentiality not > due process/fair criminal justice
Cheney v. US: …
Clinton v. City of NY: Line-Item uncxnal; consumes congress’s pwr
II. NON-DELEGATION DOCTRINE – dead, nowDelegation OK.
A.L.A. Schlechter Poultry:Congress can delegate, but not relinquish pwr to another branch
Panama Refining Co. v. Ryan: must give clear standard/guidelines to delegatee
Whitman v. American Trucking: Cong. must provide guidelines, org. must not understand them
INS v. Chada: Cong. cant emasculate the Exec branch’s decisions once C gives the pwr to them, TEST
Buckley v. Valeo: Principal v. Inferior Officers
Morrison v. Olsen: 4 factors for INFERIOR OFFICER, Dissent
Myers v. US: President has exclusive power to remove PRINCIPAL officers
Humphrey’s Executor v US: Example how Pres. Cannot remove officer
Weiner v US: Look at nature of function – Exec, Leg., Jud. Or quasi, mix?
Bowsher v. Synar: if essentially legislative veto, no good
Morrison v. Olson: if not interfere with presidential functions Þ ok
Curtiss-Wright: necessary and proper refers to domestic affairs only, not foreign
Dames & Moore v. Regan: broad president power, criticized for being too broad
                (Pres. War on Terrorism)
Ex Parte Milligan
Rasul v. Bush: Guantanamo can have habeas heard
Padilla:  habeas must be filed in state where held, not where captured
Nixon v. Fitzgerald: cannot sue president for actions taken while in office
Bill Clinton v. Paula Jones : can sue Pres while is office for actions done before presidency began
                EXPRESS PREEMPTION: Lorillard Tobacco – if not allowed, not allowed
Florida lime & Avocado: if Fed is a min. std, more strict rules are ok
Pacific Gas & Electric: state law pre-empt if = obstacle to Fed. Objective, unless has                                       permissible basis
                FED. LAW OCCUPIES FIELD
Hines v. Davidowitz: pre-empted where nat’l gov. has supremacy (foreign affairs)
Regel v. Medtronic: state laws are pre-empted only to the extent they are diff to/add’l to                                                fed laws.
                H.P Hood & Sons v. DuMond: economic protectionism = uncxnal
CONTEMPORARY DCC TEST – balance burden v benefit
                                SC Highway v. Barnwell: if affect inTER- and inTRAstate the same, no DCC problem
                                Southern Pacific v. Arizona: law must actually serve purpose it’s intended to, not just be a                                                            “cover-up”
                                City of Philly v. NJ: stopping all goods at border = facially discrim, DISSENT
                                C&A Carbone v. Town of Clarkston: connect restrict flow out either
                                Hughes v. Oklahoma: if not actually serve purpose, not allowed
                                Hunt v. Washington Apples: must use non-discriminatory alternative if possible
                                United Haulers: no discrimination if not accept in or out of state, market participatxn exceptxn
Exxon v. Governor or MD: if not discriminate against ALL out of staters, not violate, DISSENT
West Lynn Creamery: cannot burden out of staters for pure benefit of in staters
MN v. Clover Leaf Creamery: example – not favor in or out of staters
Dean Milk Co: cannot discrim if reasonable non-discrim alternative exists
Main v Taylor: Example: no less discriminatory means available
Pike v. Bruce Church: if serve legit interest w/only incidental IC effects, uphold unless burden > benefit
Bibb v. Navajo: same balancing test
Kassel: same, compare to Southern Pacific, DISSENT
                                CTS Corp: same
                EXCEPTIONS TO DCC
                                West’n & South’n Life Ins.: congressxnal approval, McCarran-Ferguson Act removes any CC restrictxn
                                Reeves, Inc. v. Stake: if act in quasi-private manner Þmarket exception ok
                                South Central Timber: 2-stage deal Þ clue, state reaches into role of regulator, exception not ok
I. PRIVATE CONDUCT (does not have to comply with cxn)
Civil Rights cases: private conduct does not have to comply with the constitution (ie can discrim)

               i.      Art III, §1:
1.       “The Judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
                                                              ii.      Art. III, §2:
1.       “In all cases affecting Ambassadors, other public ministers and Consuls and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such exceptions and under such regulations as the Congress shall make.”
                                                            iii.      What does this mean?
1.       Arg. 1: Congress has broad powers to remove matters from the Sup Ct’s review.
a.       Because framers intended congressional control as a check on the judiciary’s power
2.       Arg. 2: Congress is limited in its ability to control Sup Ct jxn. (never accepted)
a.        “Exceptions” intended to modify “Fact.”
                                                                                                                                       i.      t/f Congress could create an exception to the SupCt jxn for review of matters of fact, but Cong.could not eliminate the Ct’s appellate jxn for issues of law.
b.       congressional powers cannot be used in a manner that violates the Cxn.
b.       Cases – Congressional Limits
                                                               i.      Ex Parte McCardle (1868) p.25
FACTS: McCardle (newspaper editor) imprisoned for writing articles critical of Reconstruction and military rule of the South post Civil War. McCardle’s ability to file for habeas corpus(A court order that commands one who has restrained another to produce the prisoner at a court to determine the legality of custody)made possible by an Act of Congress, which gave the Supreme Court appellate jurisdiction “in all cases where any person may be restrained of his or her liberty in violation of the Constitution.”B4, Federal courts could only hear habeas petitions from people held in federal custody. McCardle, however, was held in custody by military authority for trial before a military commission, even though he was not in the military himself. But before McCardle’s habeas petition was ruled upon on the merits by the Supreme Court, Congress passed another Act, expressly revoking the appellate jurisdiction for these types of axns.
1.       ISSUES: Can Congress strip away this particular type of appellate jurisdiction when it had previously granted it? YES
a.       Supreme Court’s jurisdiction is granted by the Constitution, but in the same Article, it is made subject to “such exceptions and under such regulations as Congress shall make.” Congress has the power to expand, and thereafter limit, the scope of the appellate jurisdiction of the Supreme Court. CANNOT REMOVE original jurisction.
                                                              ii.      U.S. v. Klein (1871) p. 27
FACTS:Congress statute, “If your property was seized during the War, you can recover the property, or compensation for its reasonable value, upon proof that you had not aided the enemy during the War.”Supreme Court held that the one could satisfy this burden of proof with a presidential pardon.So, Congress passed a statute that said (1) presidential pardons are NOT sufficient as proof of loyalty, and (2) a pardon which does not expressly disclaim the guilt of its recipient will serve as proof of outright guilt, i.e., that the recipient DID aid the enemy. The new statute went on to say that, if lower court case was decided in favor of the recipient on the basis of such a pardon, the appellate court receiving the case should dismiss for lack of jurisdiction.
BIG separation of powers questions.(1) Congress completely diminishing the value of a presidential pardon ÞLegislative v. Executive. (2) Congress telling the Courts how to interpret their statuteÞLegislative v. Judicial.
1.       HOLDING: Congress may not direct the outcome of a case by prescribing the rule of decision, nor may Congress impair the power and effect of a Presidential pardon.
a.       “It is the province and duty of the Judicial department, not the Legislative,to say what the law is.” Marbury v. Madison
b.       different from McCardle,(where Ct said it was OK for Congr to take away jxn)
                                                                                                                                       i.      Cong’s“exceptions and regulations’ does not intend to withhold the appellate jurisdiction except as a means to an end.”
                                                            iii.      Roberts v. Seattle Audubon (1992) p. 29
1.       HOLDING: This is OK, not unconstitutional
a.       Congress can change the law, they just can’t direct findings or results under the old law.
b.       CompareKlein: New law that dictates how the old law should be interpreted v. Roberts: New law
IV.                Justiciability – Can the federal courts adjudicate the matter at hand?
a.       Basis
                                                               i.      Art III, §2: “The Judicial Power shall extend to all … cases and … controversies.”
1.       What is a “case or controversy?” 
2.       Art. III §2SupCt can only adjudicate where there is an active dispute between adverse litigants.                
                                                              ii.      Discuss:
1.       Standing, which deals with WHO can bring a claim against who
2.       Ripeness and Mootness, which deal with WHEN a person can properly bring a claim and
3.       Political Questions and Advisory Opinions, which deals with WHAT claims can be adjudicated by the Court.
b.       Advisory Opinions
                                                               i.      “cases and controversies”: federal courts cannot act as advisors to the other branches
                                                              ii.      declaratory judgment action not = “advisory” opinion, bc sometimes brought even before one party has been injured. But a declaratory judgment merely establishes the rights of the parties in dispute at a given time, and it does not necessarily have the effect of resolving the entire controversy. One justification for declaratory judgments is that it is inherently unfair to require a person to violate a questionable law in order to challenge it. See Abbott Labs, infra
1.       Nasheville v. Wallace
a.       test was that “the case retains the essentials of an adversary proceeding, involving a real, not hypothetical controversy.” 
                                                            iii.      Cases – Advisory Opinions
1.       Hayburn’s Case (1792) p. 32
FACTS: Congress set up a system whereby disabled veterans could file claims for pension benefits. federal courts were asked to hear the claimants’ cases and inform the Secretary of War their opinion of the merits of each claim. Their opinions are not binding.
a.       HOLDING: Unconstitutional. 
2.       Plaut v. Spendthrift Farms (1995) p. 32
FACTS: Congress amended SOL provisions of certain securities laws. Act allowed cases to bere-opened and would require adjudication anew
a.       HOLDING: Congress cannot pass legislation that would re-open cases that have already been finally adjudicated by the judiciary. 
                                                                                                                                       i.      violates separation of powers. Congress made what would otw be binding decisions into mere advisory opinions. Under Marbury, it is the court’s duty to “say what the law is.” Once they’ve said what it is, that’s it should be final.
1.       “The Constitution gives the Federal Judiciary the power, not merely to rule on case, but to decide them.”
b.       NOTE: Scalia makes an important distinction which would come up later in Roberts v. Seattle Audubonsupra
                                                                                                                                       i.      “But . . . having achieved finality, however, a judicial decision becomes the last words of the [Court] with regard to a particular case or controversy, and Congress may not declare that the law applicable to that case was something other than what the Court said it was.”