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

Con Law
Spring 2011
Judicial Review and Constitutional Structure
·         Text:  Explicit in Constitution
·         History/Intent of Framers & 1st Congress
·         Supporting Judicial Precedent
·         Structure of Government (Sep. of Powers)
·        Other values (Not “policy argument” but rather values that aren’t expressly stated in constitution but are embraced and embodied by the constitution – UNIFORMITY)
·         Text:  NOT explicit in Constitution
·         NOT Framers/1st Congresses Intent
·         NO Precedent
·         Structure:  One branch is Encroaching/Aggrandizing
·         NO other values are furthered
Judicial Review: 
Marbury Judicial Review
·         The Court has the final review on interpreting Constitutional issues because it is empathetically the province and duty of the judicial department to say what the law is.
·         Limits to the Court jurisdiction must not reach the point of interfering w/Courts “essential function”
Hunter’s Lessee State Review
·         Judicial Review is extended to state court decisions of federal constitutional law b/c:
o   Text:  Art III gives Court jurisdiction over all cases/controversies arising under federal law.
o   History:  1st Congress unequivocally provided for the Court to review judgments that involved issues of federal law.
o   Values:  Uniformity and overcoming biases were essential values of the framers.
Limiting the Court’s Jurisdiction:
Exceptions Clause:  In all other Cases before mentioned, the SCOTUS shall have appellate Jusidiction with such exceptions and regulations as Congress shall make.
Ex Parte McConstitutional
·         Congress can limit the Court’s appellate jurisdiction under Article III’s exceptions clause b/c:
o   Text: supports that Congress can modestly tinker with stripping jurisdiction
o   Other Values:  The limitation of appellate jurisdiction is okay because there are still other avenues available for litigants to appeal
o   Structure:  Framers intended to limit the power of the Court through political checks bc unlimited power would destroy the essential function of our government
·         Although Congress can limit jurisdiction under the exceptions clause, congressional limitation may fail if the limitation is unconstitutional based on not leaving avenues of redress or if congress is trying to control the substantive result of cases.
·         There is a lack of other avenues for appeal or finality
Other Supreme Court Controls:
Const Amendment: Congress can request 2/3 of both houses & ¾ of states to amend Constitution
Presidential Appointment:  President can appoint justices, if avail, to influence other justices
Impeachment:  Congressional threat to remove person for high crimes solely for public reasons (useless)
Congressional Federal Legislative Power
Constitutional Arguments SUPPORTING Implied Congressional Power:
·         Art. I, Sec. 8:  Enumerated powers – argument that there are a variety of enumerated powers, so Congress can use any means necessary to do so that it sees fit
·         Necessary and Proper Clause – broad Congressional authority to carry out enumerated powers
·         Intent of Framers:  Framers intended that the enumerated powers not be specifically listed, but in order to avoid the embarrassment of the Articles of Confederation, to list braod powers.
·         Structure: the powers of the state are generally sovereign but when the states decided to become a union they gave up some of their rights to a national power.
Constitutional Arguments AGAINST Implied Congressional Power:
·         10th Amendment:  The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people  (argument is rebuttable)
·         If it’s not listed in the enumerated powers, it’s not a power of Congress  (argument is not effective)
·         Enumerated Powers:
o   “Absence of text” – Constitution doesn’t say you can’t make a National Bank
o   10th Amendment:  Does not say that the powers have to be expressed  (rebuts the 10th argument that the powers not delegated to the federal government are reserved to the States)
o   Text argument:  Constitution gives gov the power to tax, make $, promote commerce.
§  Bank is a way of carrying out Congresses Constitutional power
o   Structure:  A country of people not states, and people gave up some rights to preserve others
·         Necessary and Proper:
o   Court says “necessary” means “convenient” or “useful”  (NOT absolutely necessary)
§  History- Framers knew not good idea to specifically list b/c would overly limit gov.
o   “Let the end be legitimate, within the scope of the constitution, and all means which are appropriate and plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution . . .”
·         N & P:  Foundation for Rational Basis:  As long as Congress has employed a means which is not prohibited by the Constitution and is rationally related to the objectives that are within the enumerated powers, then the Court will give deference to the Congressional action.
·         Balancing Power of Fed Gov and States
o   States cannot limit/tax the federal government b/c it would undermine the gov’s power
o   Political check on the states b/c “the power to tax is the power to destroy,” and no state can have the power to destroy the federal government
Commerce Clause: 
Congress has the power to regulate commerce among the several states for the general welfare, but not solely for the purpose of having police power.
·         Commerce?  Is what’s being regulated commerce?
o   The Lopez 3:
§  Channels of Commerce (things passed through – highways/waterways)
§  Instrumentalities of Commerce (things that move – vehicles/people)
§  Economic activity or Substantially related/effecting Interstate Commerce
·         Interstate?  Is it interstate commerce or is Congress overstepping by regulating purely intrastate?
o   Congress can only regulate Commerce which is…
§  Interstate:  Intermingled among states  (Gibbons)
§  Aggregate:  Intrastate acts that have economic effect on states (Wickard/Raich)
·         Regulate?
o   Whether or not what congress is doing can be said to “regulate” commerce within the meaning of the Constitution, or is it regulating a different activity (Darby, Heart, Lopez)
·         Limits?
o   10th Amendment check – undefined areas of regulation that were never intended to be subject to federal authority and

nference Piling
o   Morrison Lack of Findings
o   Activity is purely inTRAstate
o   Activity is not economic
10th Amendment Limiting Congressional Power:
This section boils down to whether the State has been commandeered through executive/ legislative action or by financial coercion.  Congress CANNOT force states to act, but are allowed to provide incentives under the spending clause.  Must identify if the congressional action is an incentive, or force to determine if commandeering has occurred.  Viewed as a check when spending power has exceeded to violate 10th
Commandeering:  Forcing the states to do something that the federal government should do.  There are two arguments around commandeering:
·         When Congress is compelling the states to follow federal law if the states are to act as a private entity (to act as an employer) rather than as a sovereign state
·         The imposition os only slightly ministerial (not good argument)
Consider when Congress passes a statute telling states to do/not do something.  Congress is not allowed to force the states to do something in their sovereign capacity, but rather only allowed to give states an incentive.  However if Congress is regulating as an employer then it can force the states to do something.
Garcia as Employer OK
·         Congress can force states to comply with federal law when the state acts as a private entitity (an employer) rather than a sovereign entity (state interests)
·         When you treat a state as a private entity (employer) then commandeering is permissible b/c there is  a greater national policy (ex: forcing creating an organ database)
New York Legislative Commandeering
·         Federal government may not compel a state to enact or enforce a particular law or type of law
·         Congress cannot commandeer the legislative processes of a state by directly compelling them to enact a law that enforces a federal program.
·         Garcia is different b/c Congress is subjecting state to  same legislation applicable to private parties.
·         If the act commandeers the legislative process of the states, then it would compel the states to perform the federal government will.
·         Dissent believes that, although the Federal government may not compel state/local officials to carry out the will of the federal government, they can compel the states to perform federally-specified tasks if they are only slightly ministerial to the administering of the Federal program
Printz Executive Commandeering
·         Federal government may not compel the state/local executive branch to perform federally specified administrative tasks.   (background check)