Introduction to the Constitution and Interpretation

Background of the Constitution

1776 is when the Declaration of Independence was published. 1781 is when the Articles of Confederation were published. The purpose of these articles was develop a confederation (union) between the states while keeping the restrictions on the States loose. Consequently, there was a lot missing from these documents. James Madison outlined some of the issues:

  • The states would fail to comply with constitutional requirements.
  • The states undermined federal authority.
  • Several of the states would trespass (do wrong towards) another.
  • Lack of ratification by the people for the Articles of Confederation.
  • And more. (7 more)

As a result, the Constitutional Convention occurred. The initial purpose of the Convention was to add commerce power to the Articles of Confederation. However, the founders had other plans and the Constitution was created in 1787 before it was ratified in 1789.

There has been a lot of debate about the Constitution and its value today. Some of these perspectives on the founders and the Constitution include:

  • The document was made solely of compromises. It’s not perfect, but it is the best we can do.
  • The founders were geniuses in their day. They had faults, but any flaws came from the inability to decide.
  • The founders were elitists who had the interest of their property at heart when creating the document.
  • The founders were radicals for attempting and succeeding in expanding federal power.

My opinion is that the Constitution is a mix of compromises made by extraordinarily intelligent men, prepared for the purpose of drafting a document to govern the nation.

Even at the founding, some of these perceptions were shared then. Madison, Hamilton, and Jay were federalists who wrote papers to defend the Constitution.

Federalist No. 10

One of the arguments made by antifederalists is that having a large republic would result in factions that would undermine the interest of the public good. Madison refutes this in Federalist No. 10.

A faction is where a group of people (minority or majority) are driven by a common interest that undermines the interest of the public. The way to remove factions is to either limit liberty and thoughts, or to limit the influence. Because we want liberty, our job is to limit factions. Madison argues that a large republic could do so on a federal level because you are taking the interests of a wide variety of people. So much interest, that a faction would not be able to get traction. How? If a faction developed, the other interests would feel threatened and quash the faction before it can obtain too much ground. Madison is famous for this thought.

Federalist No. 51

This paper addresses how ambition can counteract ambition through the separation of powers and checks and balances. There are two kinds of separation of powers: vertical and horizontal. Vertical separation refers to federalism, where the state and federal governments are separated. Horizontal separation refers to the three branches of the federal government, who in turn have power that overlaps, but checks the other branches.

Another interesting thing to note is that the founders predicted that the legislative branch would be the most powerful branch of government today. many would argue that this is no longer the case.

Constitutional Framework

Judicial Review

Marbury v. Madison

Honestly one of the most interesting cases. You have to understand the background to get a good feel of the thing.

Marbury was appointed to become a judge by John Adams before Adam’s left the presidency. He was confirmed and his commission was signed but never delivered. Jefferson told Madison to not give the commission to Marbury. So, Marbury went to the Supreme Court and asked them to demand it be provided.

Interestingly, Marbury had a right to the commission and the remedy he sought, just not from the Supreme Court. Article III of the Constitution states that this kind of remedy would have to come from an appellate level and Marbury went with the original jurisdiction approach. This was in keeping with the Judicial Act passed by Congress. However, since the Act violated the Constitution, the Supreme Court held that the rule was unconstitutional.

And thus we have judicial review. The court declares what the law is. Our Takeaways:

  • The court gets to determine if the laws are constitutional.
  • Those determinations are binding on all other branches of government.

What are the reasons Marshall provided for this new rule?

  • The Constitution was written down. If the Constitution is written down, then the people want to preserve it.
  • The court has a natural role of hearing these cases.
  • Because the Constitution is the Supreme Law of the Land, the judicial branch should strive to preserve it.
  • Marshall argues that the Constitution granted jurisdiction to handle these cases.
  • Finally, Justices have taken an oath to protect the Constitution.
Martin v. Hunter’s Lessee – Virginia v. Supreme Court

This case was based on a federal issue that was raised in a state court. After Virginia had made a decision and it was appealed and reversed. Virginia refused to implicate the ruling. So, it was appealed again to determine if the Supreme Court has appellate jurisdiction over the state courts. The answer is yes. Why?

First, the federal judicial power extends to all cases. Second, Article VI has a supremacy clause which says that federal laws are superior to state courts. Third, split decisions can be resolved across jurisdictions (regarding to federal issues). Fourth, to remove state bias of federal issues.

So, how far does judicial review extend? There is a case called Cooper v. Aaron. After Brown v. Board, Arkansas said that the rule did not apply to them because they were not a party in the case. However, the court says that even though a state was not the party to a case in another case, that state is still bound to Constitutional rulings. This is a large expansion of judicial review.

Scholars are split on this decision, saying that the language “goes too far.” That the court oversteps its boundary by creating legislation.

Methods of Constitutional Interpretation

Text and Original Meaning

There are several ways the Supreme Court has adopted to help interpret the Constitution. One very popular means is through originalism.

Originalism refers to the original meaning of the text. Originalists often come in two forms. Textualists, or original intent. Textualists look at the text of the Constitution as it reads, providing definitions from the time of founding to aid in interpretation. Those who focus on original intent look at the founders purpose within the document to determine the meaning.

D.C. v. Heller – Textualism example “Right to Keep and Bear Arms”

D.C. v. Heller is a classic example of a textualist argument. The opinion was written by Justice Scalia, an avid textualist. Scalia picks apart every word from “keep,” “bear,” “arms,” “militia,” etc. Additionally, the court examines the text surrounding the amendment. This process is called the original public meaning.

The original public meaning means that when you are faced with a phrase, you look at the original meaning according to the public at the time. This meaning can be deciphered through examination of dictionaries from the time, legal documents, etc.


Structural interpretation refers to the Courts ability to produce an analysis that attempts to build up the Structure of the Constitution. In other words, this form works to support the founding ideas of “Separation of Powers” and checks and balances.

McCulloch v. Maryland – Taxing the U.S. Bank

Here, there were two questions. Is a federal bank constitutional? If so, does Maryland have the power to tax that bank?

The constitution contains several congressional powers. Although the establishment of a bank is not included, Congress does have the power to create laws it sees are “necessary and proper” to meet other congressional powers. For instance, a bank can help with taxes and regulate commerce. So, Marshall says that the structure of the Constitution allows Congress to use a bank.

For the second question, Maryland does not have the power to tax the bank. This is because the Constitution has the supremacy clause, the purpose of which was to ensure the separation of powers. If Maryland can tax the bank, that would violate that principle.

Natural Law or Natural Rights

Calder v. Bull – Yea or Nay?

One justice said that if the law goes against the natural rights listed by the Declaration of Independence and protected by the Constitution, then it is the responsibility of the court to protect those natural rights. In other words, there is an “unwritten Constitution” which the court needs to protect.

The other justice disagrees by saying that if the law violates the Constitution, then yes, it is unconstitutional. However, it is not the responsibility of the court to determine whether the Constitution has been violated if the only goal is to preserve subjective rights.

Summing up the Categories


  • Textualism
  • Historical
  • Structural?


  • Ethical (Natural Law or Rights)
  • Polling Jurisdictions (Public goals)


  • Stare Decisis, Doctrinal, Precedent (What was said before?)
  • Pragmatic, Prudential (What’s the benefit?)

Judicial Limitations

Constitutional Amendments

Several times, constitutional amendments have been used to overrule Supreme Court opinions (Amendments XI, XIV, XVI, and XXVI).

Power to Appoint

The president can choose someone who they think will support their views. The senate can ensure that the individual is more moderate.


The judicial branch has been impeached and removed from office more than any other branch. One Supreme Court justice was impeached, but not removed. One resigned. Several lower court justices were impeached and removed.

Life Tenure

Some jurisdictions put an age limit on what is considered “life.” That way, judges are not in office until they literally die.

Jurisdictional Restrictions

Ex parte McCardle – Habeas Corpus

The Constitution sets the boundaries but Congress can shrink the jurisdictional boundaries further through legislation. This allows Congress to have great control over what the court gets to made decisions on. However, there are three possible theories of how far this can go.

  • Plenary power argument – Congress can restrict the court completely.
  • Necessary functions argument – No matter the restriction, courts are always allowed to hear cases that are necessary for constitutional interpretation.
  • Constitutional barriers argument – Congress is not allowed to restrict cases that would violate another constitutional provision.

Case or Controversy Requirements

According to Article III of the Constitution, the federal courts are only allowed to address issues that present a “case or controversy.” As a result, there are certain requirements that must be met to establish that a case or controversy exists. This is often referred to whether a case is justiciable.

First, the courts are not allowed to issue advisory opinions. Second, the case must be ripe (ready for review, kind of overlaps with standing). Third, there must be standing. Fourth, the case must not be moot. Finally, the case must not present a political question.

In class, we talked about advisory opinions, standing, and political questions (each affording an additional section below. I want to provide a couple more details about mootness here.

A case is moot if it has already been resolved. As a result, there is no more need for a legal remedy. For instance, if a company complains about a label published and then sues but later the label is removed before the court gets to trial, the case is moot. There is nothing the court can do about the label, seeing how the label is no longer an issue. However, there is an exception to the mootness rule. If the case is “repetitious, yet evading review” then the court will hear the case. This is significant when it comes to abortion cases. Because legal system typically takes longer than the nine months before a woman has a baby, the case would normally be considered moot. However, due to this rule, women repeatedly become pregnant and the system evades review, so the case can be considered not moot (and justiciable).

Advisory Opinions

This is when a branch of government asks for advice from the court before enacting legislation. A case or controversy requirement naturally keeps the court from providing advisory opinions. A pro to advisory opinion is that it would allow for uniformity in legislation. However, the cons (and pros to case or controversy) is the lack of separation of powers, and the lack of practical application (by waiting for a case to arise without the issue). In other words, advisory opinions work in the abstract while case and controversy focuses on practical application.


Clapper v. Amnesty International USA – Foreign Surveillance

Standing has three elements that need to be proved:

  1. Injury in fact (must be present injury, not future potential injury)
  2. Traceable to the injurious action. In other words, the law in question must be the cause of injury.
  3. The injury can be redressed by a court order in favor of the injured party.

Clapper focuses primarily on the first element but does address the second. The third is ignored. The reason being if the party fails to meet any one of the elements, there is no standing.

Takeaways from the case:

There is no harm for fear of a hypothetical injury. However, the dissent says that the harm has occurred. Under previous statutes, tons of surveillance had already taken place and it is sure that surveillance would continue under the new statute. So, it is easy for the courts to manipulate standing to determine which cases they do or do not wish to hear.

Political Questions

A case is not justiciable if it presents a political question. However, just because an issue has a political element does not mean that it presents a political question. So how do you determine what is a political question? See below

Baker v. Carr – Time Between Redistricting

There are several factors that could influence whether there is a political question:

  1. “A textually demonstrable constitutional commitment to the issue to a coordinate political department; or
  2. a lack of judicially discoverable and manageable standards for resolving it; or
  3. the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
  4. the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
  5. an unusual need for unquestioning adherence to a political decision already made; or
  6. the potentially of embarrassment from multifarious pronouncements by various departments on one question.

Professor Kende summarized these into three main categories:

  1. There are no manageable standards.
  2. The Constitution says that the issue is not for the court.
  3. Embarrassment of another branch of government (by a court decision).
Rucho v. Common Cause – Partisan Gerrymandering

Ultimately, the conflict is whether there is a manageable approach to resolving partisan gerrymandering. If not, there are no manageable standards and it would be a political question. If so, then the court could hear the case on its merits.



Federalism refers to the separation of powers from a federal government and the several state governments. This is different than decentralization which is merely a management system of federalism. Under federalism, the point is to give the federal government certain powers, such as the opportunity to regulate commerce, but retain the majority of powers for the states.

Commerce Clause

The commerce clause has been involved in a wave of expansion and limitation throughout history. Starting with Gibbons v. Ogden, the court expanded interpretation. In Hammer, interpretation was limited. However, with the passage of the New Deal, the commerce clause was almost always allowed as a valid exercise of congressional power (another expansion). On the other hand, in 1995, the courts limited the power once again. All this to say that the interpretation of the commerce clause remains in dispute. The cases below outline this wave and the rules associated.

Stage 1: First Expansion

Gibbons v. Ogden – New York Ferry


  • Navigation is commerce
  • Congress has the ability to regulate interstate commerce
  • Gibbon was licensed by the federal government
  • Federal power (Gibbon’s license) overpowers state power (Ogden’s license).
  • States have the power to regulate any material that appears purely internally within the state.

What’s the scope of national legislative power v. the scope of state powers.

However, the exception to the commerce clause is the police powers. If the state finds that the interstate commerce is potentially harmful, they can regulate that commerce (e.g. COVID quarantines).

Stage 2: First Limitation

Hammer v. Dagenhart – Child Labor Case

The issue here was that Congress attempted to create restrictions on businesses within states under the premise that the goods shipped over state lines. The majority here says that the purpose of the bill matters. The legislature is not allowed to control commerce in a way that infringes on the state police powers. The dissent argues that the purpose does not matter. Thus, if Congress wants to regulate interstate commerce, they are well within their right regardless of the effect it has on the state’s police powers.

This test is called the manufacture test. This was a way of categorizing what was considered commerce. In essence, if Congress was attempting to use the commerce clause to target the manufacturing rather than the shipping, then it was unconstitutional. In other words, if the legislation directly affects commerce, it is constitutional; if the legislation indirectly affects commerce, it is unconstitutional.

Stage 3: Second Expansion (New Deal)

United States v. Darby – Labor Hours

Overturns Hammer.

There are two parts of this case:

  1. There were goods in interstate commerce. No doubt the goods can be regulated.
  2. The requirement of wages and hours. Because this is related to the interstate commerce, Congress is able to restrict. Although the purpose was other than regulating commerce, it does not disqualify Congress from making the regulations.

Additionally, the court says that the 10th amendment does not affect the policy here. They say that the 10th amendment is “but a truism.” That is, the amendment is nearly worthless, where it is only applicable if the federal government goes too far (Highly debatable).

The takeaway from this and other cases is that the New Deal was successful in the long run. The courts upheld the legislation and the New Deal set the foundation for the administrative state (agencies to further social policies).

Wickard v. Filburn – Excessive Wheat

While Hammer was an example of categories (direct v. indirect), Wickard is an example of applying a functional test. This theory is that times change that causes categories to deteriorate. A functional test continues to develop with the passage of time.

Here, the court argues that there is an substantial economic effect. Even though this farmer’s excess wheat was minimal, but if you combine his efforts with others, this goes too far. In other words, this aggregation would lead to a substantial economic effect.

So, the test is that Congress can regulate local commerce that would have a substantial economic effect on interstate commerce. The aggregation can be used to meet the substantial effect.

Stage 4: Third Expansion (Civil Rights)

Heart of Atlanta Motel v. United States – Lodging Discrimination

Here, the court extends the influence of interstate commerce. That is, not only in the transportation of goods, but it includes marketing over state lines and people traveling over state lines. Additionally, the courts say that discrimination affects interstate commerce. This is because African Americans were restricted in their travel which has a negative economic impact on interstate businesses (can’t travel, stay, or eat at those locations). In other words, there was a substantial effect on interstate commerce.

Katzenbach v. McClung – Dining Discrimination

In this case, there was minimal activity regarding interstate commerce, most of the activities being local. However, the courts determine that there was a substantial effect. This is because there was a rational basis for the whole Act. As a result, even though it was minimal here, there was an adverse effect through aggregation.

Another thing to note (thinking ahead to the exam) is that the necessary and proper clause could substitute here as well. So, if we are not sure about whether the Commerce clause is in effect, the necessary and proper clause can be used to add points.

Stage 5: Second Limitation

United States v. Lopez – Gun Free School Zone Act

There are three kinds of interstate commerce.

  1. Channels of interstate commerce
  2. Instrumentalities of interstate commerce (persons or things) even if the instrumentality is local.
  3. Substantial effect.

Most cases are about the third category. Ultimately, the activity that is going on itself needs to be economic. Here, there was no direct economic effect and thus it was a violation of commerce clause power.

Morrison furthered this principle by turning down a statute that did regulate the commerce with the proper language. This was because the activity itself was not an economic factor.

However, Raich seems to be controversial. It seemed to fit the meaning of completely local (backyard). However, because there was a wide variety of economic influence based on the exceptions to the law.

National Federation of Independent Business (NFIB) v. Sebelius – Individual Mandate of the Affordable Care Act

The individual mandate exceeds Congressional authority under the commerce clause.

The main argument from the majority is that the clause mandates those not engaged in the marketplace to become engaged in the marketplace. According to the Constitution, the commerce clause does not have the authority to compel, only regulate. Roberts says that it is not the role of the court to create a metaphysical theory.

The takeaway, inactivity is not commerce. In other words, not being active in the market does not give Congress the authority to allow the market to make one active.

The Ginsberg dissent on this issue argues that this is an active market. The reason being that everyone will engage in the health care market (60% within a year and 90% within 5 years). Interestingly, this is exactly the metaphysical argument that Roberts does not like. Additionally, inactivity in the market does affect the market. By doing nothing, individuals cause insurance companies to increase rates which causes those companies to have less jobs (not enough money to pay employees). Because of this drastic effect on commerce, Ginsberg believes that the individual mandate does fall under the authority of Congress.

On a policy level, consider the arguments of socialism v. the free rider problem.

State Interstate Commerce

“The Dormant Commerce Clause”

Traditionally, the courts determined that commerce was not to be regulated by states for the following reasons:

  1. To protect against the vices of “protectionism” (economic efficiency)
    • Protectionism is the state’s desire to create interstate barriers so they can protect local development.
  2. National unity
  3. Because Gibbons v. Ogden says that Congress has the sole power to regulate commerce.

Facially Discriminatory Statutes

City of Philadelphia v. New Jersey – Bad Trash
  • This is a facially discriminatory statute. As such, the reason must be compelling in the least restrictive means.
  • New Jersey argues:
    •  The compelling reason is that they are running out of space and need to preserve their space for local use.
  • The court disagrees:
    • The statute is protective which is not favored constitutionally. Additionally, this is completely against the idea of national unity.
    • Finally, this is not the least restrictive means of meeting the reason. Instead, the only way to restrict entry is to quarantine the waste coming in.

The takeaway:

Facially discriminatory statutes require evaluation with strict scrutiny. The only two cases to meet scrutiny include quarantines or livelihood protection. See Maine v. Taylor, 477 U.S. 131 (1986) (holding that the fishing industry could be completely undermined if the importation of baitfish and as such the restriction passed strict scrutiny).

West Lynn Creamery, Inc. v. Healy – Sour Milk

Note, states have the authority to tax people inside and outside alike. Additionally, states have the authority to subsidize industries within the states. However, combining the two together becomes unconstitutional because then it nullifies or cancels out the tax to in-state producers.

Also note that the theory of subsidization can become more difficult if the money comes from a general fund.


This case is an example of the court applying a balancing test, evaluating the state interests and the costs of that interest. This is applied in more tricky cases.

The market-participant doctrine

A state may discriminate against out-of-state producers when the State is an active participant in the market. In other words, the market-participant doctrine is the exception to the dormant commerce clause. See Reeves v. Stake, 447 U.S. 429 (1980).

A good example of this doctrine are public universities where there is a different cost for in-state tuition and out-of-state tuition. The reason why it is allowed is because the state is a market participant in education and thus the dormant commerce clause does not apply.

Privileges and Immunities Clause of Article IV

See United Building & Construction Trades Council v. Mayor of Camden, 465 U.S. 208 (1984). The privileges and immunities clause sounds like you are not able to discriminate against out-of-state citizens. There must be a “substantial reason” to justify the out-of-state discrimination. Notice that this is not strict scrutiny. So, although the clause is more broad, there are more limits. The limits include:

  1. The statute must be facially discriminatory
  2. Second, the statute must discriminate against citizens (not corporations)
  3. The discrimination must be against certain fundamental rights:
    1. Right to pursue your occupation
    2. Access to the courts
    3. No change in property prices for in-state v. out-of-state
  4. Finally, there is no “market participant” exception (see above)

Our takeaway: Don’t mix this test up with the dormant commerce clause test.

Facially Neutral Statutes with Effects on Interstate Commerce

Hunt v. Washington State Apple Advertising Commission – Bad Apples

Although the statute is not discriminatory on its face, it is discriminatory in effect because North Carolina is engaging in protectionism. So, there is a balancing test here.

Kassel v. Consolidated Freightways Corp. – Semis v. Doubles

Here’s how the balancing works. There are four steps:

  1. If there is protectionist interest, the state loses. What is the motive?
  2. What is the burden on the out-of-state participants? Burden?
  3. Calculate the benefit on in-state participates. Benefit?
  4. Balance the burden v. the benefit to come to a conclusion.
Less Restrictive Alternative Analysis

Sometimes, the court conducts their analysis by determining evaluating alternatives. If there is a less restrictive alternative, then the court will strike the more restrictive statute.


  • Facially discriminatory statutes face strict scrutiny
  • Facially neutral statutes use a balancing test
  • Market-participation is an exemption to the dormant commerce clause
  • Privileges and Immunities are another limitation to state regulation


NFIB v. Sebelius – Individual Mandate of the Affordable Care Act

Congress is free to tax the nation if:

  1. It does not impose a penalty
  2. The tax does not contain a scienter requirement (crime for not paying).
  3. The tax is issued by an agency authorized to collect revenue (IRS).

Although the mandate fails under the commerce clause, it passes under the taxing power. The taxing and spending power is also exercised more broadly than the commerce clause.


NFIB v. Sebelius – Medicaid Expansion of the Affordable Care Act

This is a violation of the Constitution because this is going to cost a lot of money. Additionally, if a state did not adopt the plan, that state would be cut off entirely. In other words, the federal government offered a “all-or-nothing” deal. In short, this is coercive. Either take the expansion and get funding or get no funding at all. This coercion is so dramatic that the program is practically new. This is not an amendment, but a shift from one kind of Medicaid to another.

Despite the clause being a violation, the act still stands because Roberts “severed” this from the rest of the act. That is why Scalia dissents, because he believes the whole act is unconstitutional and that this should not be severed.

The Ginsberg dissent argues that this is simply an alteration of the current Medicaid plan. Ultimately, this is a taxing and spending for the general welfare because it only covers those who are making about 15,000 or less a year. They also argue that this is not a gun to the head because the states have some flexibility to determine how much of their budget goes to the program.

Dakota v. Dole Notes – Drinking age to 21

The punishment in Dole was 5% for not raising the drinking age to 21. 5% was ok, while 100% was not. First, this restriction was not coercive. There needs to be a connection between the condition and the incentive. Additionally, the program needs to be unambiguous.

With these elements, the government’s taxing and spending power is permissible.

  1. Not coercive (was the issue with Sebelius).
  2. Relationship between the condition and the incentive.
  3. Unambiguous description of the condition.
United States v. Butler – Agriculture

The Madison approach was that spending had to be connected to an enumerated power. Hamilton argued saying that spending could expand beyond the enumerated powers.

In Justice Stone’s dissent, he argues that this is not coercive because there is a subsidy (giving money to people). Additionally, because the government is giving money to people, it makes sense that there should be a request for receivers of the money to follow conditions. Further, Congress should be given authority to give money to things that govern the health of people within the nation.

Ultimately, this case is good law is some aspects. The Hamilton approach is still adopted. However, since this case, the majority of cases have followed the dissent’s reasoning.

Notice the difference between commerce and taxing powers. The commerce regulates directly. The taxing power and spending power is really an incentive to self-regulate.


Missouri v. Holland – Migratory Bird Treaty with Britain


  1. A law may not be constitutional when not attached to a treaty but is with a treaty.
  2. Congress has a strong interest in upholding foreign commitments, maybe so much that it overcomes 10th Amendment objections.
  3. The treaty law has the ability to give Congress more power to do things than other domestic provisions. But see Bond v. United States, 134 S. Ct. 2077 (2014) (holding that the treaty was unrelated to the indictment).
Medellin v. Texas – Mexican convicted of Murder

Medellin had committed a murder in Texas. He confessed after he had been read his Miranda rights but was not read rights under the Vienna Convention which said that he could have the opportunity to meet with an official from Mexico. The claim here is that the rights of this individual was violated under these treatises.

The Texas court ruled that this is not a self-executing treaty. In other words, a treaty that is not self-executing does not have any effect if there are no statutes made to implement the treaty. Here, there were no requirements created by the government to implement the treaty.

However, the dissent argues that treaties have been seen as self-executing in the past and other authorities have sought the enforcement of the treaty.

Majority – technical (formalistic). Dissent – functional.

Power and Limitation Under the Reconstruction Amendments

§ 5 of the 14th Amendment

South Carolina v. Katzenbach, 383 U.S. 201 (1966) – Literacy Test

The issue in S.C. v. Katzenbach is whether the federal government could restrict states from creating literacy tests before people could vote. § 5 of Amendment 14 allows the government to enforce provisions. Thus, the federal government created a law that issued a formula. The formula looked at states that issued literacy tests and had very low voter turnout among minorities. If the state met the formula, the state would have to get permission for any changes in poll locations or literacy tests.

Even though this seems a breach of federalism, it was allowed through the 14th amendment. The main point is that the law is upheld.

Note: Later, in Shelby, the court struck down this formula.

Katzenback v. Morgan

If Congress can come up with a good reason for the statute, then it would be constitutional (rational basis test).

There are two main reasons why the court allows this law to stand:

  1. To provide a remedy for arguable violations
  2. Congress can make substantive interpretations that goes beyond the Court’s authority.
City of Boerne v. Flores

The point of the RFRA was to say if a law was passed that burdened religion, then the courts would look at those laws with strict scrutiny.

The proponents of RFRA argue that this broadened the rights of religion, falling into line with Katzenbach v. Morgan. However, the court disagrees. A big reason for the disagree gives congress the power to enforce the Constitution, not interpret the Constitution. As such, Congress is not allowed to rewrite the Constitution.

So, the court gives a two part test to determine if § 5 authority applies:

  1. Congruence, and
  2. Proportionality

The RFRA here failed this test because the amount of § 5 needs to be proportional to the problem. This is not proportional because the RFRA was a nationwide law without any evidence of broad religious discrimination. Compare this to Morgan, where the law was narrow, with discrimination going to minorities in the area.


  1. Changing v. defining the Constitution (Congress can only define, not change)
  2. Congruence and proportionality test

11th Amendment Limitations

A plain reading of the eleventh amendment says that a citizens cannot bring suit against a State (e.g. Iowan cannot sue Iowa, Iowan cannot sue Utah, etc.). However, this has not been the case. There are four exceptions to this rule (legal fictions):

  1. Individual Capacity – Civil Rights lawsuits (Most common)
    • Bring the complaint, name the person who violated the rights in their individual capacity ( individual capacity is the legal fiction). If they are sued in their official capacity, this would be a violation of the 11th Amendment.
  2. State Consent
    • Sometimes states will consent to being sued.
  3. Abrogation (nullification)
    • If you sue a person under section 5 of the 14th Amendment, then the 11th Amendment does not apply. This is the only provision that abrogates another Amendment. The reasons why is because it came after the 11th Amendment and the plaintiff is a suspect class.
    • Once upon a time, you could sue a state under the Commerce Clause, but this option was removed with Seminole Tribe of Florida v. Florida.
  4.  Injunctions
    • Note that you can sue for injunctive relief, but not financial relief. In other words, you can sue the state to stop the government from engaging in alleged illegal activity.

See Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003) (holding that gender is a suspected class and that through § 5 of 14th Amendment abrogates the 11th Amendment and the suit can continue).

10th Amendment Limitations

Garcia v. San Antonia Metropolitan Transit Authority – Federal Minimum Wage on State Workers

This is a state sovereignty case. Before Garcia, there were two other cases, each about 10 years apart, that kept coming before the court. Warts, said the statute was alright, National League of Cities says the statute is wrong, Garcia goes back to accepting the statute.

Note again that there are two parts to every Constitutional Law case. First, what is the applicable test (here, there was no test. e.g. What does traditional mean?)? Second, who gets to decide the effect of the test (Courts or Congress)?

The majority says that there is no applicable test for the courts to apply. Instead, the courts rely on Congress and the federal government to “Trust the Process.” The dissent argues that State’s know what their budget is, and what should be done with that budget. The federal government does not have that information. In other words, the dissent’s argument is a federalism argument. O’Connor continues to say that there is purpose to the 10th Amendment and that the federal government often fails to exercise self-restraint.

Although Garcia is technically the law, several parts of the case are no longer applicable thanks to New York and Printz.

New York v. United States – Radioactive Waste

The takeaway: Congress is commandeering the work of state legislatures. In other words, Congress is commanding the state legislatures to pass a law to control the problem. Congress does not have the power to pass the program, then pass responsibility to the states.

Here’s what this would look like if it was allowed:

  1. The federal government would require the states to take care of the problem
    1. If the law works out:
      1. Congress gets all the credit
      2. States get none of the credit
    2. If the law does not work out:
      1. States get all the blame
      2. Federal government gets none of the blame.

So, Congress is not allowed to require the states to do the work who gets none of the credit or take all of the blame. There is a “line in the sand” where Congress is not allowed to cross.

Printz v. United States – Brady Act (Gun Purchase Background Checks)

The argument that this is not a commandeering task is because the task was trivial (simple job of checking the computer to see if the person passes the background check). However, the Court says that this is a commandeering task because of the accountability analysis in New York. Additionally, this is not a trivial task (the sheriff no longer has the ability to choose what tasks they follow).

The three strands of federalism:

  1. Commerce Clause
  2. 11th Amendment
  3. Commandeering


Arizona v. United States – Immigration

These were two new laws that were designed to help the federal government do their job, that is address issues at the southern border. Thus, the question turns to, can the states do so? The answer is no, why?

Here, the state is trying to adjust federal law. Something the state does not have the authority to do. In other words, Arizona is preempted by federal law.

There are three kinds of preemption:

  1. Occupy the fields preemption (the issue with Section 3, the federal covers ALL law within the field)
  2. Express preemption (the federal law says that there can be no state law on the matter)
  3. Conflict preemption (when there is a conflict in the federal law and the state law, the federal law wins; the issue with Section 5).


Implied Executive Power

Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case)

The first power relied on by the President is the Commander in Chief provision. This provision does not work because this was not a “theater of war” but instead focused on the seizure of personal property at home.

Justice Black says that there are no implied powers (textual). Frankfurter says that this action was unprecedented throughout history (Historical practice). However, Jackson’s concurrence is the controlling opinion in this case. He says that there are implied powers and sets up several categories to determine if the Presidential Power is allowed:

  1. President and Congress align – President has most implied power
  2. Congress is silent – Examine the imperatives of events (circumstances) to determine if the President has implied power.
  3. President and Congress do not align – President has the least power (must be examined with caution).

The dissent argues that the implied powers should not be based on what Congress thinks about a particular issue, “the President is not Congress’s messenger boy.”

Foreign Affairs

United States v. Curtiss-Wright Export Corp. – Exporting Weapons


  • This falls under Youngstown’s first category (Congress and the President align).
  • The President has more power when he acts abroad than when he acts domestically.
  • Sovereignty passes directly to the union after the break from Great Britain.
  • The President is the “sole organ” who represents the United States.
  • The consensus on this case is that the decision is correct but there are a lot of issues with broad statements regarding Presidential power.
Dames & Moore v. Regan – Restricting Iranian Property

Note that Carter had executed an executive agreement with Iran, a foreign nation. This agreement is not a treaty, which means that there is no explicit Congressional approval. Regan’s executive order is pretty much an effort to enforce that agreement domestically. So ultimately, the question is, does the President have the authority to execute the agreement followed by the order.

Yes, the IEEPA authorized claims to be dismissed. As for the nullification, then history points towards Congressional approval, despite their silence.

So, the actions taken by Regan fall into Youngstown’s first category. When it doesn’t fit into the first category, this falls into the second category. Those actions under the second category are authorized because this is an emergency.

The other side of this theory is simply a separation of powers argument. A President should not tell the courts how to function (e.g. executive authority to dismiss claims).

This case, as well as Curtiss-Wright are broad Presidential powers while Youngstown is narrow.

Medellin v. Texas – Convicted of Murder

Note that Curtis-Wright exaggerates Presidential power, which is not the case. The President does not have the power to convert a self-executing treaty into good law.

So, what is the takeaway:

  • Whenever there is a Presidential power case, start with a Youngstown analysis. Here, this case falls into the last category.
Zivotofsky Ex Rel. Zivotofsky v. Kerry – Jerusalem

Who has the power to determine the nationality of other countries, Congress or the President? The court says that the President is the only individual who has this power. Congress is not allowed to insert themselves into foreign affairs of this type (the reception clause). This is because the President is the sole representative of the United States.

So, this case is different than a Youngstown analysis because the President has the Constitutional authority rather than Congressional authority.

Warmaking Powers

Hamdi v. Rumsfeld – “Enemy Combatant”

Hamdi wins on the due process ruling. Hamdi is entitled to some of his rights, including the right to an attorney and against being held indefinitely.

Here is the analysis:

  1. There is a category of enemy combatants that can exist. The federal government has the power to initially hold.
  2. American citizens who are enemy combatants are entitled to due process.
    1. Due process includes the right to reevaluate the status for continued holding, lawyer, produce some evidence, and do so in front of a neutral decision maker at a hearing.
    2. However, the defendant still has the burden of proof to show that he is not guilty. Additionally, some hearsay evidence may be allowed, the trial could be not formally.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

President Bush had established a statute which set up military commission to follow certain procedures when people were held by the President. Although the Executive is arguing that the commission is fine by the Geneva convention which does not apply, the Court rejects that argument. In other words, the Geneva convention does apply.

Ultimately, this should have been approved by Congress. However, Congress, after Hamdan, passed a statute that set up hearings for those who were detained but restricted a lot of other rights (including removing habeas corpus rights). Unfortunately for President Bush, the Supreme Court in Boumediene v. Bush, said that this statute was unconstitutional. Although the President aligned with Congress, there were too many rights restricted.

The big takeaway:

  • The Geneva convention applies, regardless of the attempts to circumvent the convention.
The War Powers Resolution under 50 USC §§ 1541-48

The President has the authority to mobilize wartime efforts, but needs to do so with a declaration of war. The declaration of war comes from Congress. So, what happens when Congress does not want to declare war, but the President wants to mobilize troops? Can Congress require the President to mobilize in certain situations?

The War Powers Resolution was passed during the Vietnam war. Congress wanted to get out of the war. Ultimately, the Resolution limits the President’s power to initiate military action. Thus, the President is only allowed to enter into hostilities if there is a declaration of war, statutory authorization, or a national emergency created by an attack on the Country. Additionally, the President needs to keep Congress informed on proceedings.

If the President engages in military action without approval, then the President can commit those troops for 60 days and then withdraw the troops unless Congress takes action.

So, can Congress pass this resolution? The Constitutional objection is that the Constitution gives the President the right to mobilize and that Congress is not allowed to exercise that authority themselves. On the other side, Congress is given the express authority to declare war.

For an example of how the President and Congress attempts to weaves around this resolution is through President Obama’s actions in Libya.

Ultimately, the resolution has not had much impact on restraining executive military efforts.

Executive Privilege and Immunity

Privilege – Documents and Communication as Evidence

United States v. Nixon

The idea of privilege is that the President does not need to share conversations and documents with the courts. Simply, the communication is privileged (see Civ Pro).

There were two main arguments why this material is privileged. National security and separation of powers.


  1. President’s have some executive privilege. This privilege is assumed.
  2. The privilege is a qualified privilege (the privilege can be overcome in certain circumstances).
  3. Thus, the court weighs the interests of the President v. Criminal efficiency.

Immunity – Can you Sue?

Nixon v. Fitzgerald

A President is absolutely immune for actions taken in the capacity of their office.

Clinton v. Jones

There is no absolute immunity for a President who takes actions not in the capacity of their office. The President may still be sued while in office.

Can be sued for:

  1. Actions taken while not in office.
  2. Actions taken while in office, but not in their official capacity.

The court reasoned that the distractions would not be too bad for the President.

Trump v. Vance

President Trump’s arguments include:

  1. Absolute immunity
  2. Qualified privilege
    1. Distraction
    2. Harassment
    3. Stigma
  3. Supremacy Clause (Federal trumps State)


  1. The precedent says that the President has to turn over documents. See BurrNixonClinton.

Concurrence wishes there was a higher standard.

Alito, in his dissent, recognizes the importance of the President and how challenging it may be if a sitting President could be criminally charged.


  1. Impeachment
    • Bribery
    • Treason
    • High Crimes and Misdemeanor (misconduct)
  2. Privilege
    • Qualified
    • Strongest when National Security is at stake – Judges may need to examine
  3. Immunity
    • Can you sue?
    • For acts as President – Absolute
    • For acts taken before President – No immunity
    • Acts taken by President not acting in capacity – No immunity
    • President’s are not above the law.


The legislative brach has the authority to delegate some powers to the executive brach. However, there are debates about how extensive this authority is. Grundy is an example of this debate in action.

Non-Delegation Theory and Agencies

Gundy v. United States

The non-delegation doctrine is the idea that Congress should not delegate to the Executive branch powers that are normally reserved to legislation making.

However, with the passing of the New Deal, many delegations were upheld. To have a valid delegation, Congress had to provide an “intelligible principle” to define the purpose of the delegation. See Chevron.

Once again, things changed. The courts started limiting the ability to delegate. Even though the delegation was valid in Gundy, it was limited. Gundy was limited by a deadline when the authority would expire, and there was an intelligible principle (within the scope of the Attorney General’s power). However, the dissent argued that the intelligible principle was a cop out (always passes muster so the limitation is useless). Therefore, the dissent argues that there should be additional requirements to show that the delegation is appropriate.

Major Question’s Doctrine

West Virginia v. E.P.A.

Here, agencies are going to be limited every time a major question is presented (big issues). In those situations, agencies are required to have express congressional approval for regulating in ways that would present a major question.

Major questions appear in extreme or extraordinary circumstances . Thus, there is a two part analysis. First, is the agency acting in a way that is extraordinary (some very important policy question)? Second, does the agency have Congressional approval to behave in such manner? If the answer to the first is “yes” and the second is “no,” the agency is limited by the Major Questions Doctrine.

However, the dissent argues that a major question doctrine should be avoided. Instead, we should use standard statutory interpretation techniques because it is really difficult to determine “what a major question is.”

There are pros and cons to having agencies. On the positive side, agencies have individuals who are experts and can make adjustments that the legislature would not know. As a counterargument, agencies are appointed and therefore have bias leaning towards their appointee. Additionally, agencies are not elected and therefore the people have limited remedy if they do not like what the agencies cover.

The current trend is to restrict the use of agencies. Consequently, we are slowly moving back towards the non delegation doctrine.

Ultimately, there are three main approaches to agencies:

  1. Support the agency (Chevron is alive and you should defer to the agency)
  2. Balance – agencies should not touch major questions (Chevron is dead)
  3. Agencies are unconstitutional

Legislative Veto

INS v. Chadha

Delegation with strings (legislative veto).

Congress delegating power to the Attorney General to stop a deportation. The string says that “whatever is decided by the Attorney General can be overturned by one of the houses of Congress. In other words, Congress is reserving the authority to alter the decision. Is this constitutional? Here, the court says no. Why? Both houses need to be involved then present the law to the President. (bicameralism and presentment). If one house has the ability to overturn, then lawmaking does not work.

This majority opinion is very textual/formalist reading of the constitution. Strict.

However, the dissent argues that a legislative veto is necessary, especially since there are over 200 laws that are already in existence with legislative vetos. Ultimately, invalidating the law makes government much harder to manage. He likes the idea of keeping a string.

This dissent is a very functional reading of the constitution. Flexible.

As for the 200 invalidated law, the dissent’s concern did not really occur. For example, Agencies and Congress started working together anyways.

Appointments and Removals

Article II of the Constitution provides the President’s power of Appointments and Removal:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Separation of Powers

Background cases and an overview on removal restrictions:

Myers v. United States – All executive functions remain with the executive branch. This is called the unitary executive theory.

Humphrey’s Executor v. United States – For lesser officials, the executive is limited to what extent they may remove those officials. This case is an example of a backtrack from Myers.

The question then becomes, what is the scope of the power to remove and by whom?

Morrison v. Olson – Investigating the Executive


  1. From the text of the Constitution – Courts have the authority (if granted by Congress) to establish inferior officers (Principle officers must be appointed by the President). These are individuals who are are limited in scope and powers. Thus, the appointment was proper.
  2. Indue interference test – Is the limitation going to interfere with the President’s ability to perform their constitutional duties? Here, the court says no because the removal is not central for the executive to function.
  3. Dissent – Basically the opposite of the majority. All power is invested into the executive, and therefore, any limitation would unduly interfere (which is a dumb standard according to the dissent). Additionally, this individual is not an inferior officer because of how much power the officer has.

Recess Appointments

National Labor Relations Board, v. Canning – No time for anything

Article II, section 2, clause 3 provides:

“The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of Congress’s next session.”

  1. Inter-session – Appointments made in-between annual recess. These appointments have term limits to the end of the session. Constitutionally, not a problem (may have some issues politically).
  2. Intra-session – Taking a recess in the middle of the session. Appointments made during this time are more controversial. However, these appointments are allowed. However, there needs to be a sufficient recess time for these appointments to work. The problem here was that the Senate still met twice a week (need a gap of about 10 days).
  3. Dissent – Where did we come up with the 10 day rule? Not a fan based simply off of allowed historical practice.


Chiafalo v. Washington – Electoral Disobedience

It is permissible for a state to have sanctions against electors who do not vote along with the voice of the state voters.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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