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Constitutional Law I
Villanova University School of Law
Lanctot, Catherine J.



Judicial Review – the process by which courts decide whether actions of government officials comply with the Constitution

1. [Marbury v. Madison] – Marbury filed suit against Madison, Jefferson’s Secretary of State, seeking a writ of mandamus to compel Madison to give Marbury his commission (it was signed and sealed by Adams, just not delivered in time)

Three Issues –

Does Marbury have a right to commission? YES

Withholding his commission is a violation of a vested legal right
Right to commission when it has been signed by the President and the US seal has been affixed by the Secretary of State—appointment is made

If he has a right, and that right has been violated, do the laws of our country afford him a remedy? YES

A refusal to deliver the commission is a plain violation of a vested legal right, and the laws of our country afford him a remedy, so Supreme Court can enforce a remedy
Not inappropriate for Supreme Court to issue injunction against Secretary of State forcing him to deliver writ because he is not above the law—is an officer of the Executive Branch

If there is a remedy, may the Supreme Court constitutionally grant it? NO

Judiciary Act 1879, Sec. 13 adds another category of cases to original jurisdiction, which is unconstitutional
Conflicts with Article III, Section 2, which only grants original jurisdiction to specific set of cases and gives everything else to Appellate Court
The court does not carve out an immunity depending on who is in question

4. If statute is unconstitutional, then what?

Framers intended Constitution to be binding, otherwise Congress can amend Constitution by statute whenever it wants
RULE: An act repugnant to the Constitution is void – must have binding effect if decided as void by SC, because “It is emphatically the province and duty of the judicial department to say what the law is.”

EXCEPTIONS CLAUSE: Congress’s Exceptions to Supreme Court’s Jurisdiction

Article III Section II: “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.” Congress’s “blunt instrument” to threaten the Court—brandished but not used very often

RULE: Although the United States Supreme Court’s appellate jurisdiction is derived from Article III of the Constitution, Congress can make exceptions in jurisdiction – a check on Judiciary



In favor: Text of the Constitution says so
Against: Exceptions clause means moreso to “regulate,” not broad power to jurisdiction strip

Original Intent

In favor: Exceptions Clause intended as a check on Judiciary by Congress (evidence as Federalists’ papers)
Against: Framers intended to have three branches of government and would have never given one branch all the power


In favor: McCardle, pro jurisdiction-stripping
Against: Klein—overly broad; Marbury—Construe this clause in light of Marbury

Governmental Structure

In favor: Consistent with checks and balances as a check on Judiciary
Against: We have checks and balances but each branch is independent and we cannot let one branch gut the other

Core Values: Constitution embodies core values that need weight (broad argument)

[Ex Parte McCardle] – McCardle used the statute to get into Court, but before a decision, Congress repealed the 1867 statute upon which McCardle asserted the Court had jurisdiction.

Issue: Is this consistent with the Exceptions Clause or is Congress interfering by passing a law that repeals Supreme Court’s jurisdiction?
Doesn’t matter what Congress did, only matters that the Court no longer has jurisdiction – “We are not at liberty to inquire into the motives of the legislature.”
Supreme Court: Our hands are tied

[United States v. Klein] – Klein applied for compensation for his property seized by the government during Civil War; Unconstitutional because too broad; not consistent with Exceptions Clause;

“We must think that Congress has inadvertently passed the limit which separates the legislative from the judicial power.” = Unconstitutional
Congress interfering with how future cases will turn out; interfering with President’s pardoning power and Court’s Article III powers
Congress is stripping jurisdiction (like in McCardle), but going further because they are proscribing a rule of decision and telling Court how to decide automatically
Exceptions Clause means moreso to regulate, not broad power to jurisdiction-strip

Peterson – Congress changing underlying substantive law and not prescribing a rule of decision


A. When a power is not enumerated, can it be enforced?

[McCulloch v. Maryland] – U.S. chartered a federal bank and Maryland tried to tax the federally created bank

Three Issues –

Does Congress have power, under Article I Section 8, to incorporate a bank? Yes

Constitution comes from the people who ratify it, not the states; First Congress was closest to ratification of Constitution

If this power is not an Enumerated Power, is it implied? Yes

Does not matter if there is no specific enumerated power because it is an implied power—a Constitution including every small enumerated power would be volumes long

“We must never forget it is a Constitution we are expounding”

Inconsistent with Limited Government? No, under Necessary and Proper Clause

Necessary and Proper Clause: states that Congress may create laws it deems necessary and proper to help carry out its enumerated power (add’l power)

Expands rather than limits Congress’s enumerated powers to include various crises of human affairs, as Constitution meant to endure for years to come

If a federal statute is generally tied to an enumerated power, uphold it where the law does not prohibit it

[United States v. Comstock] – Federal statute allowing civil commitment of federal prisoners if the government proves by clear and convincing evidence that they have engaged in sexually violent conduct or child molestation

Unclear what Article I power authorizes Congress to enact this statute; sustained through Necessary and Proper Clause; related to the enumerated power of regulating crime


Article I, §8, Clause 3: “Congress shall have the power to regulate commerce … among the several states”

With the exception of completely internal commerce, Congress may regulate all commercial activities occurring between states but within one state’s borders

Commerce – includes navigation, traffic, not just buying and selling [Gibbons v. Ogden]; includes instrumentalities of interstate commerce [U.S. v. Lopez] Interstate – “intermingled with” not just stopping at state boundary; “among the several states”
Power to Regulate – includes power to prohibit
Other Limitations on Power – State must yield to congressional law, via Supremacy Clause; if disagree with Congress’s Commerce Clause power, throw them out in the next election, don’t challenge as unconstitutional [Political Check]

Regulation of Moral Issues is Fine As Long As You’re Still Regulating Commerce

[Champion v. Aimes] – Court uph

We defer to Congress to make these decisions; presumption of constitutionality


10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

Fed. Statute Violates 10th Amendment

Commandeering – Federal government cannot force states to perform a federal regulatory program

[Printz v. U.S.] – Government wanted to require state officials to temporarily conduct background checks under Brady Gun Control Bill

Federal government cannot require states to carry out a federal program

[New York] – Commandeered by federal government to regulate and own toxic waste

Unfunded mandate

Does not Violate 10th Amendment

Law of General Applicability – Congress is just regulating the state as an employer

[Reno v. Condon] – Not commandeering because not targeting states in their sovereign capacity, only regulating the market

Congress not displacing the states because the activity falls within federal authority

[Garcia] – Distinction between federal law telling individuals what to do as opposed to telling state officials what to do

In circumstances where state is being regulated as a private enterprise, doesn’t violate 10th Amendment—solution is political check, not Judicial; federal law telling state and private companies how to wage

Minor regulation that does not rise to the level of commandeering

Spending Clause: Congress giving money to state on condition of states doing something or risk losing funding (partially or completely)

[South Dakota v. Dole] – Constitutional; Congress wants the drinking age to be 21 but SD allows 19 year olds to drink; Congress says state will lose 5% of highway funds if non-comply

Four Requirements to Utilize Spending Power:

The exercise of the spending power must be for general welfare
The conditions for receiving the funds must be unambiguous
Conditions must be related to a federal interest**

Here, connection between young people drinking and driving and potential highway destruction, plus the possibility of crossing state lines to drink at age 19

Conditions must not violate any other constitutional provisions such as the 10th Amendment—no other constitutional bar
+Coercion – making the state it feels it has no choice to comply (5% of funds likely not coercion; 100% would be)

[Sebelius] – Constitutional; Court upholds individual mandate on spending/tax power for Affordable Care Act, or states lose 100% of Medicaid Funding

Dissent – Coercion and economic dragooning – forcing states to do it or no money, when Medicaid is 10% of most state budgets so state really has no choice

Counterargument: Congress can abolish Medicaid anyway