**ONLY 4 VOTES NEEDED TO GRANT CERT TO SUPREME COURT**

Constitutional Law
United States Constitution
- Way amendments within the Constitution change:
o Interpretation
 Changes by the meaning of key terms (overruling) or through the court's
composition
o Ratification
 2/3rd majority in House and Senate or Constitutional Convention called for
by 2/3rd of state legislatures
 Bills  House and Senate can override a president's veto with a
supermajority in the house and senate
Article 3 of the U.S. Constitution
Section 1: Establishes the Judicial Branch
o Judicial Power of the U.S. is vested in one Supreme court and in such inferior
courts made by congress. Judges of both courts shall hold office during "good
behavior."
 Judicial power is held by one Supreme court but congress has the power to
expand inferior courts (federal district or appellate courts) known as the
Madisonian Compromise. (Called this because one side of people thought
there ought to be mandatory lower federal courts and another side thought
there should only be one supreme court.)
 Requires a Chief Justice, allows Congress to establish the number of
justices. (At the founding, there were 6 Justices, now there are 9 Justices.)
Article 3 preserves the salary of the Justices and gives them a lifetime
appointment.
 States that Justices can only be removed through the same
impeachment process as the president (no justice has ever been
removed)

Section 2; Cases for Federal Jurisdiction; The Scope of Supreme Court’s original
jurisdiction
o In all cases regarding Ambassadors, other public "ministers and consuls," and
those in which a State shall be Party, the Supreme court has the original
jurisdiction.
Original jurisdiction: The right of a court to hear a case for the first time,
rather than one appeal; Therefore, if a state is a party it CAN start in the sc
T/f only cases involving foreign ambassadors or those in which a
state is a party may originate in the supreme court
 Congress cannot add to this list or, IOW, extend S.C.'s
original jurisdiction via Marbury v. Madison

o In contrast, for all other cases, the Supreme Court has the appellate jurisdiction
that is subject to exceptions and regulations made by Congress, this is known
as the "Exceptions Clause" (In Ex Parte McCardle, Supreme Court upheld a
statute that intentionally took away its jurisdiction to decide a pending case even
though the statute was enacted after the case was argued.) IOW, Congress can
limit the court’s jurisdiction. Also, Congress may delegate adjudicatory power to
federal administrative agencies and non-Article 3 federal courts
 3 Limits on the Exceptions Clause (On Congress’s power over federal
courts)
 Congress cannot exercise its power over federal jurisdiction in a
way that: 1.) is itself unconstitutional OR 2.) expressly dictates
how the federal courts should resolve a pending case, but Congress
can change the law to affect a case
 Congress cannot provide for the extrajudicial revision of federal
courts' final judgments by either the executive or legislative branch

Article V: Ratification of an amendment

- An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if
two-thirds of the States request one, by a convention called for that purpose. The
amendment must then be ratified by three-fourths of the state legislatures, or three-
fourths of conventions called in each state for ratification.

Article IV, Section 4: Guarantee Clause

o Requires guarantee every state a Republican form of government and provide
protection from foreign invasion and domestic violence.
o Claims under the Guarantee clause are not justiciable (Luther v. Borden, Baker v.
Carr)

Marbury vs. Madison

o Judicial Review: The Supreme Court of the United States has the authority to review
laws or executive action and strike it down if it violates the Constitution.
o U.S. Constitution supersedes state law, federal law, or any other legislation.
 Mentioned in Article VI; known as the "Supremacy Clause"
o Questions (in order) Chief John Marshall wishes to address
 Has the applicant a right to the commission he demands?
 Selection Process: Nomination  Appointment  Commission
(Jefferson refuses to execute the commission)
Yes, if he has a right then he has a property right to the demand
 If he has the right, and that has been violated, do the laws of his country
afford him a remedy?
Yes, there is a remedy.
 If they do afford him a remedy, is it a mandamus issuing from this court?
o Holding: Section 13 of the Judiciary Act is unconstitutional because it conflicts
with Article 3 of the Constitution.
 Section 13 allowed original jurisdiction to the S.C., however, was
[Link] 3 of the constitution states that the S.C. only has
original jurisdiction over cases involving states or foreign ambassadors.
Therefore, section 13 of the Judiciary Act of 1789 violated the
constitution.
The Judiciary Act (Section 13)
The act to establish the judicial courts of the United States authorizes the Supreme Court "to
issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts
appointed, or persons holding office, under the authority of the United States."
Article III of Constitution, Section. 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made, or which shall be made, under their
Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls; --to all
Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall
be a Party;--to Controversies between two or more States;-- between a State and Citizens of
another State;--between Citizens of different States; --between Citizens of the same State
claiming Lands under Grants of different States, and between a State, or the Citizens thereof,
and foreign States, Citizens or Subjects.
 In all Cases affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party, the supreme Court shall have
original Jurisdiction. In all the 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.
Brutus No. 3
- Brutus criticizes the representation with the legislative system with overrepresentation in
smaller (rural) areas and underrepresentation with larger (urban) areas. This trend follows in the
senate with large and small state sharing two senators irrespective of their size.
- Criticizes Article 1, section 2 clause 3 (house) and Article 1 section 3 clause 1 (senate): which
creates the three-fifth clause, the number of representative should be 1 for every 33,000 in the
house, 2 senators per state, and a numeration should be made to adjust the house. Brutus said 33
House members and 14 senators would be a "quorum" there is too little representatives per state.

Brutus No. 11 and 15

- Brutus is a series of letters which criticizes the U.S. Constitution
o One fear is that the judiciary power will eliminate the states because the court will
have too much power.
o Supreme court's influence will accumulate overtime and swallow up state
judiciary and state governments.
 This is because the Supreme Court cannot be removed, they are in power
forever unlike Senators and other legislatures; Points that judges can void
legislative acts through judicial review
o Supreme Court can have power over the state government's because they get the
ultimate say in judicial interpretation, Brutus further notes the ambiguity in key
terms which gives the Supreme Court hefty power over the law of the land.
 Refers to this by saying the S.C. gets to decide the "spirit" of the land;
basically, the S.C. gets to determine the "gaps" of the law
Federalist No. 78 (Discusses Judicial Review)
- Response to Brutus
o Alexander Hamilton writes this and points out that the judicial branch is the
weakest out of the three branches. He supports this by saying the judiciary does
not have control over the army, money, etc. He says the branch is just responsible
for merely judgement.
o Hamilton supports judicial review which is noted in Brutus because he said it is
necessary in a limited Constitution. However, when the S.C. makes the legislative
acts void Hamilton says that the "people" made it void not the court.
o Regarding the ambiguity of legislative terms, Hamilton says courts always do this
when statues. The constitution will always outweigh statues because statues are
made by the legislatures, whereas the Constitution is written by the people.
Judiciary Act of 1789
- Purpose of the Act: Creates the judicial system with District courts, circuit courts
- Section 13 was later deemed unconstitutional. B/c it allowed the S.C. to hear cases
through original jurisdiction to write a writ of mandamus w/o the proper legal process
- Section 25: Gives SC the power to overlook any cases brought by the state or federal
levels
- Allows Congress to establish the Federal Judiciary (courts, justices, etc.) this authority
is derived from the Constitution; Article 3 Section 1 "And in such inferior Courts as the
Congress may from time to time ordain and establish."
- Section 14 allows an individual to file a writ of habeous corpus allows a prisoner to
challenge their holding by federal authorities; Habeous Corpus act extends this to state
authorities

Judiciary Act of 1801

 Gave the President more authority to choose circuit judges by adding more seats
Ex Parte McCardle (1869)
- In McCardle, congress was given the authority through the Exception's clause to
terminate a pending case from being reached to the Supreme Court. McCardle is held for
disturbing the peace for writing negative things about the government. McCardle files a
habeous corpus petition through the Habeous Corpus act. Supreme Court listens to a
hearing but Congress repeals the bill (Feb 5, 1867). The repeal therefore nullifies
McCardle's case and the case is dismissed from the S.C. Congress, therefore, was given
the authority to remove pending cases given to the Supreme Court.
- First question of the case is that if the Court has jurisdiction to listen to the case, and
therefore, ignore Congress's repeal. The court rules no.
\

Justiciability Doctrine
Justiciability is the quality that makes a dispute a case for the courts; it serves limits on judicial
review. There are five doctrines within the Justiciability Doctrine which are the following:
1. Prohibition of advisory opinion: Courts cannot advise Congress’s decisions
2. Standing: Whether the plaintiff can sue defendant in the court?
3. Ripeness: Whether the dilemmas has ripened for the court’s to rule on it?
4. Mootness: Whether there is a real dispute for the court to rule on or is it only abstract?
5. Political Questions Doctrine: Whether the issue involves a political question for Congress?

Advisory Opinions: Court cannot provide political advice considering this is "extrajudicial
activity."

Political Question Doctrine

- Political questions are disputes that involve policy choices or value determinations that
are constitutionally committed to a particular branch of the federal government.
 - With the exception to racial discrimination, the court established that apportionment
was not justiciable. Marbury v. Madison established justiciable, but Luther v. Borden
(1849) held that challenges to malapportionment of state legislatures brought under the
Guaranty Clause of the Constitution are inappropriate political questions.
- Areas considered "political questions" (foreign affairs, voting (Luther), and six part test
in Baker

o Baker v. Carr 1961 (One person, one vote standard)

 Legislative malapportionment of state legislatures brought under the Equal
Protection Clause (14th Amendment) is not a political question and is thus
justiciable.
o Fact pattern: Baker (plaintiff) was a Republican living in Shelby County,
Tennessee. The Tennessee Constitution required that legislative districts be
redrawn every ten years to adjust for changes in population. Baker brought suit
against Carr (defendant), Secretary of State in Tennessee, in his official capacity
alleging that because Tennessee had not actually been redistricted since 1901, the
urban Shelby County district had ten times as many residents as did the more rural
districts. As a result, Baker argued that rural votes counted more than urban votes
and that he was thus denied equal protection of the laws. The State of Tennessee
argued that legislative districting issues were not judicial questions but political
questions, and were thus not capable of being decided by the courts based on the
Constitution's prohibition on the Court's deciding political questions.
 This case created an exception to when the court will get involved in
apportionment, one person, one vote. Therefore, racial gerrymandering
and gross numerical gerrymandering will prompt the Court to get involved
in the electoral processes. This is because apportionment does contain a
justiciable discoverable and manageable standard which is one person, one
vote under the Equal Protection Clause.
 Traces its founding from Marbury v. Madison
 Questions brought under the Guaranty Clause are not justiciable, But
questions brought under the Equal Protection Clause are justiciable as in
this case.
 Zivotofsky v. Clinton  “It is the Supreme Court's responsibility to
decide the cases properly before it. The political-question doctrine is only
a narrow exception to this rule.”

Six factor balancing test to determine whether a case presents a political question (Baker v. Carr)
o An issue presents a political question if there is: (pg. 51/60 on the reader)
1. Textually demonstrable constitutional commitment of the issue to a
coordinate branch of the federal government ** important factor
  Something is textually committed to Congress
and t/f not reviewable by the Court
2. A lack of judicially discoverable and manageable standards for the court
to use to resolve the question **important factor
3. Impossible to decide without a nonjudicial policy determination
4. Impossible to resolve without expressing a lack of respect to other
branches of government
5. An unusual need to adhere to political decision already made by another
branch
 An example of this would be getting into war and someone tries
suing the government to stop from war; the Court will not get
involved.
6. The potential for embarrassment from varied pronouncements by different
departments

- Rucho Case (Political Gerrymander Claim) (Modern Day Application)

o Republicans and Democrats were bringing political gerrymandering claims
because the Democrats and Republicans were making extremely favorable
districts to elect their party’s representatives. Court, led by Justice Roberts, said
they could not intervene. Roberts said, “Apellees contend that if we can
adjudicate one-person, one-vote claims, we can also assess partisan
gerrymandering. But the one-person, one-vote rule is relatively easy to administer
as a matter of math. The same cannot be said of partisan gerrymandering claims
because the Constitution supplies no objective measure for assessing whether a
districting map treats a political party fairly.”
 IOW, there is a lack of judicially discoverable and manageable
standards for the court to use to resolve the issue of political
gerrymandering. In contrast to the apportionment claims in Baker
v. Carr, the courts used the judicable standard of one-person, one-
vote to rule that voting districts had to be modified. T/F, the lack of
judicial standard makes partisan gerrymandering a “political
question.”

Application of the Baker Test: Nixon v. United States: Judiciable Manageable Standard Test
- Fact: Plaintiff, Judge Nixon, a federal district court judge was convicted of perjury and
sentenced to prison. He refused to resign his commission even after the incarceration, and
the United States House and Senate voted for Nixon's removal. The Senate appointed a
special committee to receive evidence and hear testimony in the case and then to report
their findings to the full Senate. Nixon instituted this suit arguing that the Senate's
creation of a special committee to hear the case violated the Article I, Section 3, Clause 6
constitutional requirement that all impeached persons be "tried by the Senate." Nixon
 sought a declaratory judgment that his impeachment conviction was void and that his
judicial salary and privileges should be reinstated.
Whether the scope of the Senate's constitutional authority to conduct impeachment proceedings
is a non-justiciable political question incapable of resolution by the courts.
Yes. Article I, Section 3, Clause 6 of the Constitution gives sole power to the Senate to try all
impeachments. The framers' use of the word "sole" is significant in that it is a textually-demonstrable
commitment of complete discretion to the Senate to conduct impeachment proceedings and to
determine the rules by which those proceedings are conducted.

Baker test factors 1 and 2, in other words, 1. The impeachment power is constitutionally reserved to the
political branches of government via “sole” in the Constitution and 2. There is no judicially manageable
standards for the resolution of the dispute for how evidence is retrieved.

(Article III Section 2 Clause 1) Standing Doctrine: Whether the plaintiff should be allowed to have a
court resolve the merits of the claimed dispute or issue? ***most important justiciability
requirement***

- For Ps seeking the same injunctive relief, only one P needs standing. (Massachuetts v. EPA). For
Ps seeking damages, every P needs standing for seek damages. (Ramirez v. Transunion)
- There are statutory standing, or specific statutes that create additional rules for who may sue to
enforce them.
- There are also two major prudential standing principles (these are added constraints
constructed by the Courts.) First, a party may generally assert only their own rights and cannot
raise the claims of third parties before the court. Second, a plaintiff may not sue as a taxpayer
who shares a grievance in common with all other taxpayers.

Standing Doctrine 3-part test under Article 3 (section 2, Clause 1) of the Constitution:

(Lujan v. Defendants of Wildlife) A plaintiff must:

1. (INJURY) Demonstrate the existence of an "injury in fact:,

2. (CAUSATION)"Fairly traceable" to the defendant, and
3. (REDRESSABILITY) Capable of being "redressed" by the court.

In other words, constitution requires that the plaintiff must personally have (1) suffered some actual or
threatened injury, (2) that injury can fairly be traced to the challenged action of the defendant, and (3)
that the injury is likely to be redressed by a favorable decision. (injury-causation-remedy)

Injury-In-Fact

(Lujan) P must show that he suffered a concrete and particularized injury and that it is a actual or
imminent injury, not abstract or hypothetical

- Invasion of legally protected interest (sufficient)

o There is a minimum standard; injury must be more than a general grievance (otherwise,
every single person can be injured by that violation and litigate.)
  EX. of Sufficient Injuries: Constitutional right, personal injury, stigmatic
injury, common law, economic, environmental, statutory
 EXCEPTION: Abstract injuries that the law should be
follow is not a concrete injury. Just because government
fails to follow the law, does not mean an injury occurred
(Transunion, Allen v. Wright).
 Pg. 106 Footnote 7 – “Procedural Interest”: If government fails to
follow, it will affect you in a personal way. Ex. Statute allows person to
follow gov’t if they fail to follow rule and the gov’t fails to follow which
hurts a local homeowner. Think Dam ex. on 106
o If the underlying right is a common-law right, it is easier to establish an injury-in-fact,
but if it a public right (anti-discrimination), it is harder to establish an injury-in-fact
 Congress may create injuries not recognized at common law but cannot
define injuries in a manner that defeats the case-or-controversy
requirement (such as authorizing citizens to enforce environmental
laws)
- Complex claims & their exceptions
o Taxpayers challenging how the government spends their money would fall into general
grievance (Richardson)
Exception: Taxpayer may challenge gov’t spending on religious activities on the basis
that it violates the Establishment Clause (Flask v. Cohen)

o Legislative challenges to how a duly enacted law is implemented

Exception: Legislators may challenge actions by the executive branch that purpose to
nullify the effect of their votes. (Baker v. Carr)

o State challenge how federal law is enforced against its citizens

Exceptions: States may sue when enforcing their interests, not just the interest of their
citizens (Massachusetts v. EPA)
- Frothingham & Massachusetts v. Melon
o Massachusetts (P1) sued to stop Congress from withholding funds by way of failure to
comply with the Maternal Act program. The law required states accepting funds to
report their compliance with the program, failure to do so would result in Congress
withholding funds. Massachusetts said this was an infringement of their rights.
Frothingham (P2) claimed the program violated the Tenth Amendment because making
this program was not an enumerated power given to Congress by the constitution. The
court used the same rule to dismiss these claims: The court addresses Massachusetts’s
claim by stating they lacked standing. There was no injury because Massachusetts was
not forced to join but instead had the option to participate. Likewise, the court states
they will not address Frothingham’s claim because she lacked standing since there was
also no “direct injury.” This is because she was not the only one who had to pay the
program via taxes. Instead, every taxpayer had to pay. The court also notes that
allowing Frothingham to sue would give all taxpayers the authority to sue Congress
anytime they disagreed with Congress’s spending. The court deems Frothingham’s claim
 as a “general grievance,” which fails to satisfy required standing elements. Therefore,
both parties lacked standing.
 This case highlights general grievances as a taxpayer are not “direct
injuries” and will never satisfy the standing requirement. Note this is a
prudential requirement.
 IOW, Taxpayers have no way to sue Congress because
they are a taxpayer since there’s no “direct injury.”

o EXCEPTION: (SUPER NARROW) “NEXUS TEST” (Flask v. Cohen)

 A taxpayer may challenge Congress’s spending if the two-prong test is
satisfied:
 There is a logical link between the plaintiff’s status as a
taxpayer and the challenged legislative enactment
(taxes and being a taxpayer – logical link)
 IOW, taxpayer claims an alleged violation of the
taxing and spending clause

 Establish a nexus between the plaintiff’s status and the

constitutional limitation on the taxing and spending
power
 IOW, Congress exceeds the constitutional limit
with their taxing and spending power (like
violating the Establishment Clause)

 Facts: P sued Congress because Congress directed money to religious

schools. P claims this violated the Establishment Clause, which
prohibited Congress from funneling money to religious institutions. The
court allowed the claim to go through and reversed the lower court’s
ruling, which deemed that the P lacked standing because of a
“generalized grievance.”
 NOTE: This exception is incredibly narrow and can only
be applied in cases where the facts are precisely the
same. Specifically, Congress must be violating the
Establishment clause by funneling money to a religious
organization. IOW, this is incredibly meaningless. Also,
just because you have standing does not mean P wins.

- Sierra Club v. Morton (1972)

o Facts: Sierra Club, P, sues Morton (Sec. of Interior), D, for an injunction to prevent
Disney from being able to build a resort in Mineral King Valley (natural landscape.)
District court ruled P had standing, but this was appealed to the Supreme Court.
Supreme Court ruled that P lacked standing because there was no “injury.” (Pg. 83
 numeral 4) The court notes aesthetic injuries are permissible to be considered an injury-
in-fact. However, the organization cannot be “injured” since an organization is an
intangible entity. But if ONE member of the club said they were injured, then it would
have been good.
 This case establishes two things: 1.) Aesthetic injuries are sufficient & 2.)
all it takes is ONE person to be injured for the injury to have standing.
- United States v. Richardson (1974)
o Facts: Richardson (a private citizen), P, sues the U.S. Gov’t, D, because he claims the CIA
insufficiently reported its expenditures as required by the CIA act of 1949 and therefore
violated the Constitution. Richardson’s suit was dismissed for lack of standing by the
district court but later reversed by the Appellate Court. P claims the inadequate
reporting hurts his status as a voter because he does not know how money is being
spent. Therefore, he needs the report to help him vote, and his right to vote his hurt by
the government’s insufficiency at establishing the report. The Supreme Court granted
cert. P’s claim under the flask exception does not suffice because here is merely seeking
information, which has no connection to his status as a taxpayer and a claimed right to
having more detail on the spending report. Furthermore, P’s did not show a sustained
injury or an immediate danger from the result of gov’t action. Rather, P’s claim is a
general grievance that all members of the public have.
 NOTE: This case highlights two things: 1.) Flask is a narrow exception
that the courts are willing to apply. 2.) That if the injury P is claiming is
not particularized, then it is considered a general greviance. Here, P’s
injury is not different to what the public is enduring. The court treated
P in this case as a taxpayer, therefore, his “injury” is a general
grievance.
- Worth v. Seldin: “Plaintiff must have a personal stake in the outcome of the controversy.”
o Some standing requirements are based on Article 3, others are prudential requirements
imposed by the Court. In this case, general greviances are considered a prudiental
requirements established by the Court. However, the Courts are inconstitent with
establishing what is and is not an Article 3 or prudential requirement. This implies that a
court may set aside this requirement and decide the case on its merits if it wanted to,
but this is unlikely. Another prudential requirement established by the courts is
asserting an injury for a third party.
- Lyons v. Los Angeles
o P was put in a chokehold by D, LAPD. P is suing on a variety of claims. One claim was for
an injunction on police chokeholds. (Keep in mind counts 1-4 seeking damages from
police misconduct P did have standing because he had injuries.) Claim 5, seeking an
injunction on chokeholds, is what the court is determining. The court deems that P has
no standing on claim 5 because it was not “certain” that P would be put in a chokehold
in the future and suffer an injury. Because without it being “certain” P would have no
standing. According to the Court, P would need to show that LAPD would be certain to
put P as well as other people they encounter in a chokehold for it to be “certain” for
future harm.
  NOTE: The court makes the standard for future injury “certain” to occur.
T/f P has to show that the injury is absolute “certain” it would occur for
relief for a future injury.
- Allen v. Wright
o The court considers generalize grievances and asserting injuries on behalf of a third
party to be prudential requirements. More importantly, the Court establishes that when
there are inconstancies with prudential requirements, Courts must find the most
factually accurate case and apply that holding. This is important when it comes to the
standard for future injuries (“certainty” “substantial risk” etc.)T/f courts just have to find
the most analogous case and apply that ruling when it comes to inconsistencies until the
SC decides to overrule cases. If you cannot find a case similar to the current case, go
with the more recent ruling.
- Lujan (Foundation for Standing rules)
o Facts: P sought to sue an injunction using an Endangered Species Act statute that allows
people to sue all actors that violate the ESA, including government actors. P wishes to
prevent D, Secretary of Interior, from allowing the a newly proposed geographic scope
of the United States from being implemented because it would endanger species in
foreign lands (Sri Lanka and Egypt) and the high seas. The Court decides whether P has
standing to sue by constructing the foundation for standing’s rule as follows:
 P has the burden of proving the following:
 First, P must has suffered an “injury-in-fact”—an invasion of a legally
protected interest which is:
 (a.) “concrete and particularized” (Sierra Club)
 Particularization = not a general grievance
 (b.) “actual OR imminent, not conjectural or
hypoethetical” (Lyons)
 Being put in a chokehold = action
 Certainty = imminent (but this varies)
 Second, there must be a causal connection between the injury and the
conduct complained of --- the injury has to be “fairly…traceable to the
challenged action of the defendant, and NOT…the result of the
independent action of some third party not before the court,”
 Third, it must be “likely” as opposed to merely “speculative” that the
injury will be “redressed by a favorable decision.
o IMMINENT INJURY: The Court rules there is no standing because there is no “imminent”
injury because Ps claim that “someday they will visit the area which would be impacted
by D’s rule. However, the court says “Such “someday” intention – without any
description of concrete plans, or indeed even any specification of when the some day will
be – do not support a finding of the “actual or imminent” injury that our cases require.”
T/f although P’s have a particular and concrete injury by not being able to see the
aesthetic views of animals, there is not imminent injury since they claim that they will
visit the places “someday” because it makes the injury spectualive. The Court says P
need to show they will certainly go to Sri Lanka or Egypt in order to have standing.
- Massachuetts v. EPA
 o P, Massachuetts along with 9 nine other states, file a suit forcing EPA, defendant, to
follow environmental regulations to regulate car emissions from new automobiles. P is
seeking injunctive relief. This differs from the injury in Masschuetts v. Melon because
the Maternal Act had an option to opt in or out. However, the rising sea levels are
something that will effect Massachuetts regardess if they opt in or out.
 Note: This highlights that in injunctive relief cases, only one P case
needs standing. P. 119 para 3 establishes an exception for states, called
“Quasi-Sovereign interests” this provides P “special solitude” (a break)
when it comes to standing because P is trying to protect their coastal
land. In contrast, is not a citizen just complaining about climate change.
“Actual” or “Imminent” injury: although the injury is not “imminent”
being that damages will occur in 2100 it is considered imminent in
comparison to Earth’s life. Additionally, every year until then, damages
will occur. Causal Connection: Although 6% of climate change will be
reduced by this move, it is good enough for global range because
incremental steps. (Extremely low standard because the concrete
consequences of global warming would be irreversible.)
- Clapper
o Readopts the Certainty standing in accordance to Lyons (footnote 5 pg. 128) Ps were
trying to stop FBI from surveiling people (injunctive relief). However, Ps could not prove
with certainty that they would be surveiled.
o Causation and Redressibility dilemma in this case is that Ps seeking an injunction but do
not go after all ways surveilence can be done only one section. T/f an injunction does
not solve all the problems the Ps are trying to prevent since there’s other avenues of
surveillance.
- Susan B Anthony: The Court says substantial risk is still valid (as well as certainty)
o Certainly impending in this case (pg. 127) “Allegations of possibly future injury” is not
sufficient (Lyons) unless the threatened injury is “certainly impending,” (Lujan) or there
is a “substantial risk” that the harm will occur. (Clapper)
- TransUnion
o Ps had their credit information misreported by Transunion there were 1000s of Ps which
violates federal law (Fair Credit Reporting Act.) However, those who suffered no real
damage and instead just were “damaged” by Transunion misreporting their information
and suffered no real loss lost standing. Ramierez, one of Ps, was wrongly put on a
terrorist list (OFAC alert).
 Test for Concrete-Harm for cognizable intangible harm (besides physical
or monetary harm) : Court should asses whether the alleged injury to
the plaintiff has a “close-relationship” to a harm “traditionally”
recognized as providing a basis for a lawsuit in American courts.
 T/f Courts notes “an important difference exists
between a plaintiff’s statutory cause of action to sue a
defendant over the defendant’s violation of federal law,
and a plaintiff’s suffering concrete harm because of the
 defendant's violation of federal law.” “injury in law is
not an injury in fact.”
 Congress’s creation of a statutory prohibition or obligation and a cause
of action does not relieve courts of their responsibility to independently
decide whether a plaintiff has suffered concrete harm. Otherwise,
Congress could just create concrete injuries through their legislative
powers and violate the separations of power.
 T/f it is easier to establish an injury-in-fact that is
derived from a common-law right, such as libel, and
harder to establish an injury from a public right
 Congress may create injuries not recognized in common
law, but cannot define injuries in a manner that defeats
the case-or-controversy requirement (like creating
injuries when Government violates environmental
regulations.)
 Dissent Argues that constitutionally Congress should be allowed to
make concrete injuries, and the common-law analgous is not valid.

The flexibility of Imminence (Footnote 2 pg. 102)

Lyons – future injury certain to absolutely happen (certain when interacting police with everyone a
chokehold would occur; which is impossible to do.) Certainty of “whether it will occur”

Lujan – (In relation to being injured by seeing animals) Court says imminent injury is someone being
certainly impending to go to the foreign lands and see the animals and get by the aesthetically injured.
Certainty of “when it will occur”

Sustan B Anthony – Substantial risk or Certainly impending the future injury will occur

To have standing to sue the government, a taxpayer must show a logical connection between his status
as plaintiff and the claim he wants adjudicated.

o A party who attempts to assert standing  must show he has sustained OR is in danger
of sustaining  direct injury from the law
 Standing depends on personal stake in outcome, not mere interest.

Causation and Redressability

Ripeness: Concerns that the suit is premature, more needs to happened (opposite of Mootness)

- Involves pre-enforcement review of a law

- Injury arises from the prospect of future enforcement
- Test: “1.) Fitness of the issues for judicial decision and 2.) the hardship to the parties of
withholding court consideration.”
o The greater the hardship to the parties from waiting for the challenged regulation or
statute to enter into force, the more likely a pre-enforcement challenge will be
entertained.
 An absence of ripeness can usually be cured simply by waiting for the
statute or regulation to enter into force.

Texas v. United States:

Mootness: Applies when external events take place after the filing of a lawsuit and resolve the
underlying claim before the courts do. (Ex. A party dies, the parties settle their dispute, a challenged law
is repealled)

- A moot case  no longer a live dispute for the federal courts to resolve
- Exceptions:
o An otherwise moot case should not be dismissed if dismissal is likely to produce
collateral consequences
o An otherwise moot case should not be dismissed if the challenged action is “capable of
repetition yet evading review.”
o An otherwise moot case should not be dismissed if the mootness arises from the
defendant’s voluntary cessation of the alleged misconduct
o In a properly certified class-action lawsuit, the fact that the named plainitff’s claim have
become moot does not warrant dismissal of the entire suit.
-

Political Control Over the Supreme Court (How Congress controls the Supreme Court)
1. Control over the organization of federal court
a. The Constitution just allows for one Supreme Court, however, allows Congress to
establish the Federal Judiciary (courts, justices, etc.) (Judiciary Act of 1789)
2. Control over jurisdiction
a. Congressional control over federal appellate jurisdiction (Ex Parte McCardle)
Exceptions Clause
3. Nomination and Confirmation of Federal Judges
a. Judicial Philosophy
i. Originalist)– Use the law and applies it as it was constructed from the
founding fathers (framers) ("At the time of the constitution X…")
 ii. Legal realism – Analyzes and applies law through the situation and
circumstances and principles. (The more ambiguous the legal text, the
greater opportunity for a judge to apply their political, social, etc. views
can come with their judgement.
iii. Strict constructionism – Applies the constitution strictly the way it is
stated
4. Impeachment of Federal Judges

Interstate Commerce Clause

- The framework of ICC comes from Gibbons v. Ogden

United States v. Commerce

Q. 1: Whether Congress has constitutional power to prohibit the shipment of lumber from employees
who are paid less than minimum wage

Q. 2: Whether it can prohibit such work?

1937 – Switch in Time (Court expands ICC)

1941 – Darby expands the ICC clause to regulate ICC to regulate virtually anything and makes the test
that the commerce needs to have a “substantial effect” on interstate commerce to be regulated by ICC.
Additionally, intrastate commerce can be regulate as long as they have a “substantial effect” on
interstate commerce. Therefore, after Darby, 1.) Hammer is overruled and replaced with the substantial
effects test.”

1942 – Wickkard Case:

- Removes the “indirect” vs. “direct” effect test.

- Reenforces the “substantial affect” test
- Constructs the aggregate principle
- Establishes that Congress may potentially regulate non-commercial activities, purely intrastate
activities, such as growing wheat in this case.

1971 – Perez Case: Congress regulates loansharking using the ICC, by saying loansharking has an affect
on other local crimes. Court allows the federal government to regulate loansharking on the basis that it
affects crimes.

- Congress, with the use of ICC, can regulate three categories of activities
 1. Channels of Interstate commerce (i.e., prohibit shipment of stolen goods)
2. Protection of instrumentalities (i.e., protecting aircraft from destruction or getting
vandalized)
3. Activities that affect commerce (i.e., loan sharking, Darby and Wickard cases)
 Substantial is not included in the Court’s rule.

- Congress applies aggregate principle to this case to justify the Federal Gov’t’s power. Allowing D
to loan shark would have a substantial effect on the nation because then other loan sharks could
do the same activity.

- Adds that Congress does not need to show substantial findings (to show that loansharking
affects local crimes) in order to justify their legislation. Instead, they need to show that their
legislation was “rationale” which is a very broad standard.

1970-80’s: Both Jimmy Carter and Regan call for Federalism and skepticism towards Congress’s power.
Instead, they vouch for allowing local power to solve issues.

Hodel: Prior cases, have held that mining is not commerce. Yet here Congress is trying to regulate
mining. Courts allow the Congress to regulate mining because, in Perez, the Court held that Congress
does not need to show substantial finding to justify their legislation. Once again, substantial affect is not
included.

Rehnquist, on the Dissent, points this out that substantial affect needs to be shown by Congress
and, here, Congress does not show this. Implying that “affect” is super broad.

Limitation on Congress’s ICC Authority

- United States v. Lopez

o The Courts consider Congress’s legislation which bans guns from school zones
unconstitutional because there is no nexus between the possession of a gun to school
and interstate commerce. Indicates that jurisdictional elements would solve this
problem.
 Justice Thomas (Concurring): Agrees but disagrees with the “substantial affect.”
Points out that if Commerce meant what Gibbons v. Ogden interpreted as, then
why would there be enumerated powers specified in the constitution. For
example, why would crime like “Piracy” be mentioned as an enumerated power
if Congress could just use the Commerce clause to make it illegal.

- United States v. Morrison: Establishes that even if Congress has findings, findings alone are not
sufficient for Congress to establish regulatory authority because sexual assaults were not an
economic crime. This emphasizes Lopez’s holding, that Congress cannot regulate non-economic
activities.
 - National Federation of Indepdent Business v. Sebelius: Congress tries to prescribed the individual
healthcare mandate but it is blocked because Congress cannot force people to do something
using the ICC.

- Both Lopez and Morrison, distinguishes Congress’s regulatory power by pointing out that
Congress CANNOT regulate non-economic activity. But they can regulate non-commercial
activities. Although Lopez can be regulated through the ICC with a jurisdictional element, which
is seen in Dorsey and Juarez, there has not been an amendment seen with Morrison.

- Dorsey and Juarez, both involve 922 the same gun law as in Perez but deem it constitutional
because of the jurisdictional element. In Juarez, it was because the gun was made in Ohio that
moved into Illinois where the Defendant had it. In Dorsey, it was because the gun could have
moved across state, therefore, affecting interstate commerce.

- Phoma, the federal law criminalizes civil disturbances, and the Court holds this law to be valid
because of the jurisdictional hook added to the law. The rationale is that this is constitutional
because “blocking streets” or entrances to commercial or federal buildings is considering to be
affecting commerce, therefore, it affects interstate commerce, and the federal law is valid. So,
preventing the streets in any way and preventing the police from allowing interstate commerce
to flow freely. The law criminalizes hinderances of the street or entrance to commercial
buildings in “any degree.” This implies that the notion of “substantial” affect does not really
matter to the Court. Although there are three categories of interstate commerce that Congress
can regulate and this case seems to fit category 2, the Court considers this to be in category 3.

Gonzales v. Raich – Congress is allowed to regulate marijuana growing in California, where growing
marijuana is legal. Court authorizes this because it says there is a potential that marijuana will grow and
therefore affect interstate commerce. Pg. 314, second paragraph states that just growing marijuana is a
economic activity because it is a consumption of a commodity, in this case marijuana being regulated.

National Federation of Independent Business v. Sebelius

- The individual mandate is ruled constitutional because of the Tax Clause, however, it is deemed
unconstitutional use of the ICC.
- Q1. Whether the Congress can enforce the individual mandate by way of the ICC?
o No because Congress cannot use the ICC to enforce individuals to buy healthcare being
that this would be enforcing a non-activity (not buying healthcare). Dissent argues that
healthcare is
o Here, the Court rules that Congress cannot regulate a pre-existing economic activity.
 - Q2. Whether the individual mandate can be upheld as the Taxing and Spending Clause?
o Yes, Roberts sides with Keagan, Sotomayor, Breyer, and Ginsburg.

When arguing against the Federal gov’t there are two arguments you can only make which are:

1. The Federal government violated a restriction.

2. The Federal government lacks the enumerated power.

Anti-Commandeering Principle: Prohibits the federal government from requiring state legislatures or
executive officials to enact, to administer, or to enforce a federal regulatory program.

Purpose of the Anti-Commandeering Principle:

1. Part of federalism, structurally protects liberty

2. Promotes accountability; allows voters to understand who to credit or blame

3. Prevents Congress from shifting the cost of regulation onto the states

- In Darby, this is held to be a basic of the tenth amendment held in the constitution

New York v. United States

Facts: Lawsuit had to deal with radioactive waste and gave states incentives to follow federal
regulations. The three incentives were challenged by New York. Two were deemed valid, but the one
was not. These three incentives included:

Important information: Dormant Commerce Clause: prevents states from interfering with and
burdening interstate commerce (An exception to this is if Congress allows it, then states can do
it. The exception is found in Article 1 section 8 of the Constitution.)

1. Monetary incentives: Gave states money who complied with the federal regulations by
giving them money.
 a. Allowed even though it violates the Dormant Commerce clause (burden on
interstate commerce) because Congress approves of it. Therefore, an exception
to the Dormant commerce clause is Congressional approval.
b. Following that, the Taxing and Spending clause allows Congress to tax states.

2. Access incentives: States that fail to meet the deadline can be charged more, and at a
certain rate, can be denied completely from sites.
a. The answer to this question is the answer to the second question, even though
a state will be burdening the interstate commerce, therefore violating the
Dormant Commerce clause, states approve of it.

3. Take-Title Provision: States that do not follow the regulation will be responsible for the
waste and can be held liable for it. Or the state can enact the rules that Congress has
given them. Therefore, the “choices” for the state are regulate (pass laws to regulate)
OR take title for the waste.
a. Congress cannot do this. Although Congress can take federal action, if the State
fails to, Congress cannot force the State to take action by directing them with
both of their “choices” that were not choices. Since they cannot do both, this
makes the Take-Tile provision unconstitutional. IOW, Congress cannot order
state legislatures on what to do.

Printz v. United States

Facts: Had to deal with Brady Gun Control Act ordered local law enforcement officers to enforce
background checks until the Federal Government made a system to conduct these background checks
on the federal level. They do this by using CLEO to perform the background checks. Two sheriffs brought
a claim against this action claiming that it violates the Tenth Amendment.

- Majority Court deems this unconstitutional because:

o (Federal v. State federalism power of the 10th amendment) Scalia says there is no part
of the Constitution that says Congress authorizing state executive officers to do
background checks. However, Court notes that state judges should be obligated to
federal prescription because the Constitution says so. Therefore, the Federal
Government cannot order state legislators (based on NY) or state executives (based on
 this case) to perform functions, but state judges should be obligated to follow. (Federal
v. State federalism power of the 10th amendment)

o (Separation of Powers Concern) Additionally, the Court points out that there is a
separations of powers problem because the execution of law that Congress tries passing
is an executive power enumerated for the president. This is owed to the fact that the
Executive Branch is headed by the President. Therefore, Congress has no authority to be
granted this power. Congress makes the law, President executes the law, and Courts
interpret the law. The Court says that the Necessary and Proper clause does not apply
because they do not have the power to enforce executive power or command state
executives.

 Thus, if Congress passes the law and tells states how to execute the law, the
President has no say.

- Dissent (Souter): Uses Federal 27, to justify their stances. Says it gives Congress the power to
order state legislators and executives to carry out their goals.

- Dissent (Stevens):

Reno v. Condon

Issue: Whether Congress can regulate the way DMVs (state agencies) handle personal data of citizens
who obtain driver’s license (through DPPA)?

Unanimous Decision: Rules that Congress can regulate the way information is being handled, they do
not overrule Printz or New York, but instead distinguish it by saying that the information being sold
affected commerce being that it involved the sales. More importantly, the Court declares that the DPAA
is not regulating state agencies, but instead regulating the states as the owners of the databases. Also,
this regulation is not regulating the states alone but instead regulating all entities.

Held: Congress can regulate the state if that regulation also applies to private entities. Here, the state
government and private entities (or actors) were prevented from selling data derived from the DMV.

NCAA v. Murphy

Facts: The federal Professional and Amateur Sports Protection Act (PASPA) largely prohibited states
from permitting gambling on sports. PASPA also prohibited private gambling on sports. PASPA did not
make gambling a federal crime but permitted sports leagues to bring lawsuits for injunctions. New
Jersey (Defendant) passed a law permitting sports gambling. The National Collegiate Athletic Association
(NCAA) (plaintiff) sued to enjoin the law based on PASPA. New Jersey argued that PASPA violated the
anti-commandeering principles in the U.S. Constitution. The United States Supreme Court granted
certiorari.

In 2012, NJ tried to legalize sports gambling but it was prevented by PASPA. Supreme court denied cert,
however, the lower Court’s holding found that PASPA was not unconstitutional because it did not
affirmatively command NJ to outlaw gambling. In 2014, NJ passes laws that repeal Congress’s ban on
sports gambling.

Anti-Commandeering principle problem: Can Congress pass a law that allows a civil suit to be brought
against state’s when the state’s pass a law that permits sports gambling?

The Dormant Commerce Clause: Prohibits states from using taxes and regulations to burden interstate
commerce. Additionally, this clause seeks to prevent state’s from economic protectionism of their own
states which would hurt other markets.

- Exceptions:
o (Congressional Permission Exception) When Congress authorizes state to implement the
legislation that burdens interstate commerce (New York pg. 365-66)

o (Market Participant Doctrine) Under the market participation exception, when a state
government acts as a market participant (as a business) rather than a market regulator,
it may favor its own citizens in commercial dealings (derived from Alexandria Scrap but
reinforced by the Court in Reeves, Inc. v. Stake)
 In Reeves, the state built a cement plant (Stake) to deal with cement shortages
and eventually made regulations that favored South Dakota businesses and
residents over out-of-state entities. Similarly, private businesses are allowed to
favor their respective state’s residents and entities.

o Exception to Market Participant Doctrine: A state may impose burdens on commercial

transactions within the market in which it is a participant, but may not go further and
impose conditions that have a substantial regulatory effect outside of that particular
market. (South-Central Timber Development v. Wunnicke, Commission)
 In South-Central Timber, Wunnicke Commission (Defendant) was a bureaucracy
who agreed to sell timber to South-Central (plaintiff) located within the state of
Alaska. The conditions of the sales contract stated that timber sold was to be
processed within Alaska. Plaintiff sought to enjoy this condition because they
claimed it violated the Dormant Commerce clause being that Defendant, who as
the Alaskan gov’t, was behaving as a both a private actor and regulator. The
Supreme Court agreed and claimed that, a government-entity (or state) cannot
behave as both a private actor and regulator under the Dormant Commerce
Clause because it violated the Dormant Commerce Clause.
 - Two types of state statutes that burden interstate commerce
a. Statutes that burden interstate transactions only incidentally (Tier 2)
i. These statutes violate the interstate commerce clause only if the
budens they impose on interstate trade are “clearly excessive in relation
to the putative local benefits.” (Balancing test)

b. Statutes that affirmatively discriminate against such transactions OR favoring in-

state activity over out-of-state activity (Tier 1)
i. Statutes on the second group are subject to more demanding scrutiny
ii. Or these policies can be simply economic protectionism (per se
violation)

 Strict scrutiny test: If a state law is shown to discriminate against

interstate commerce, either on its face or in practical effect, the burden
falls on the State to demonstrate both that: (Maine v. Taylor, Dean Milk)
o The statute “serves a legitimate local purpose” AND
o That the purpose could not be served as well as by available
nondiscriminatory means
 Regulation upheld in Maine, but not upheld in Dean Milk

Taxing and Spending Clause – Allows Congress to tax and spend for the general welfare of the people

The power to “lay and collect taxes” found in Article 1 Clause 1 Section 8 of the Constitution.

- Madisonian view was that the power to collect taxes and was limited and could only be done for
the purposes of enumerated powers enshrined in the Constitution, but this was disregarded in
favor of Hamilton’s view which was a broader interpretation that Congress could raises and
collect taxes for reasons irrespective of it being for purposes concerning an enumerated power.

South Dakota v. Dole: Establishes five requirements concerning the Tax clause

o Dole, representing the Federal Government, is sued by South Dakota because the
government withheld 5% of highway funds to any state that did not raise the drinking
age to 21. The increasing of the drinking age was a way to combat drunk driving because
teenagers (or people under the age of 21) would go to states where the drinking age
was lower, drive there, and drink which would accidents. IOW, hiring the drinking age to
21 was a way to combat drunk driven.
o Establishes a test to decide whether the taxing and spending clause is valid in
accordance with the legislation proposal:
 The spending power is of course not unlimited but is instead subject to several
general restrictions:
1. Has to exercised in pursuit of “general welfare”
a. In considering whether a particular expense is intended
to serve general public purposes, courts should defer
substantially to the judgment of Congress
 2. Must provide an unambiguous offer
3. Federal grants might be illegitimate if they are unrelated “to the
federal interest in particular national projects or programs.”
a. IOW, they should related to a federal interest in
particular national projects or programs
4. Cannot be unconstitutional
a. Constitutional provisions may provide an independent
bar to the conditional grant of federal funds
5. Cannot be coercive
a. For example, Congress may not threaten to take 100%
of the State’s funding

National Federation of Independent Business v. Sebelius: Distinction between “penalty” and “tax” Article
1 Section 3 does not give Congress the power to penalize, but rather tax. This is a substantive issue
based on the three factors listed below.

- Congress tries to impose a tax on those who do not buy healthcare. Court deems it
constitutional using a framework founded in the Drexel furniture cases which is:
o In the Drexel Furniture the “tax” was considered a penalty because there reasons. First,
the tax imposed an exceedingly heavy burden which was 10% a company’s net income if
just only child was working. Second, it imposed that tax on those who knowingly
employed underage laborers. The Court responded by saying “such scienter
requirements are typical of punitive statutes, because Congress often wishes to punish
only those who intenetionally break the law.” Third, the tax was enforced by the
Department of Labor, an agency not responsible for collective renvenue, but instead
focuses on punishing violations of labor laws.
o In application to the Sebelius case,
 “First, most Americans the amount due will be far less than the price of
insurance, and by statute it can never be more. T/f it may often be a financial
decision to make the payment rather than purchase insurance, unlike the
prohibitory financial punishment in Drexel.
 Second, the individual mandate contains no scienter requirement.
 Third, the IRS is the agency responsible for collecting the taxation and that
service is not allowed to use those means most suggestive of a punitive
sanction, such as criminal punishment.”
 T/f the individual penalty was deemed a “tax” and not a “penalty” t/f
considered constitutional.
o Moreover, the Court deems that the act of taxing individuals to purchase healthcare
“constitutional” because “taxes to seek influence conduct are nothing new.” For
example, cigarette taxes are aimed at preventing people from smoking. Also, the Court
mentions that through taxes, Congress cannot tax something legal as a “punishment for
an unlawful act or omission.” But punishment for an unlawful act or omission requires
negative legal consequences, not merely a payment to the IRS. Plainitffs further argue
 that the statute’s language stating that individuals “shall” obtain insurance or pay a
“penalty” should be read as punishing unlawful conduct but the Court avoids that
interpretation just as they did in NY v. US. The Dissent agrees, but The Majority frames
that just because “penalty” is used it should not control the Court’s decision because it’s
practical effect is a tax.
o The Court finishes by noting fundamental objections to a tax on those who lack health
insurance.
 First, it is not clear the Constitution guarantees that individuals can avoid
taxation through inactivity.
 Second, Congress’s ability to use its taxing power to influence conduct is not
without limits. The Court has stepped in to limit aggressive, punitive sanctions
that obviously serve to regulate behavior otherwise regarded as beyond federal
authority. “There comes a time in the extensions of the penalizing feature hen it
loses its character as such as becomes a mere penalty with characteristics of
reglation and punishment.”

Presidential Power (Article 2 Section 1, 2, and 3)

Section 1: The executive Power shall be vested in a President of the United States of America

Section 2: The President shall be Commander in Chief of the Army and Navy of the United States, and of
the militia of several States, when called into the actual Service of the United States;

o However, Congress has the power to declare war, collect revenue for war and do other
military-related tasks stated in Article 1 section 8 of the Constitution.

Section 3: [H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers
of the United States

President has the executive power stated in Article 2 Section 1, 2, and 3. IOW, The president has the
power to execute laws made by Congress.

Youngstown Sheet v. Sawyer (The Steel Seizure Case)

- Question of this case: Is the seizure of the steel mill by the President constitutional? It was
deemed unconstitutional
- Presidential power comes from either Congress or the Constitution itself. In this case, the
President (represented by Sawyer) was never authorize by Congress to settle labor disputes for
the purposes of war.
- **Controlling opinion for the Court** Justice Jackson (Concurrence): 3 scenarios created by the
Constitution involving presidential and congressional overlap of authority.
1.) Congress grants power to the president
2.) Twilight zone meaning there is congressional silence on the issue
3.) President takes measures incompatible with expressed or implied will of Congress,
his power is at its lowest ebb, for then he can rely upon his own constitutional powers
minus any constitutional powers of Congress over the matter.
  This is most relevant to the Youngstown Sheet situation. Justice Jackson’s
concurrence takes a more pragmatic approach. Still, it ultimately acknowledges
that the President does not have this power even in an emergency. If the
Founders wanted this they would have installed this somewhere in the
Constitution. If Congress wanted it, they could pass a law giving such power to
the President in an emergency situation.

Gundy v. United States (Nondelegation Doctrine)

o Nondelegation Doctrine: Congress cannot delegate its power to other governmental

branches to make the rules/laws, but it does have some flexibility to confer discretion to
enforce laws on executive agencies to fulfill its job.
 However, Congress can give executive agencies great discretion in implementing
and enforcing laws Congress passes as long as they guide the agency with an
intelligible principle. The intelligible principle standard allows Congress to
delegate its authority to an executive agency by implementing guidance to the
agency on enacting a particular task.
o Here, Congress delegated “the authority to specify the applicability” of SORNA’s
registration requirement to pre-act offenders (how offenders would register.)
Defendant claims this is unconstitutional because Congress has the sole discretion in
determining this, and therefore, this violates the Nondelegation Doctrine.
 The Plurality states that Congress’s decision was constitutional because the AG
was tasked with determining whether instantaneous registration to SORNA was
“feasible.” The standard of “feasibility” and the power to delay registration of
pre-act offenders was not unconstitutional since it was guided by Congress’s
intelligible principle. More importantly, the Plurality holds the intelligible
principle standard is satisfied as long as the delegation is for “public interest.”
(pg 477) Also, the Court says, “We have sustained authorizations for agencies to
set “fair and equitable” prices and “just and reasonable” rates.”
 Therefore, the Intelligible Principle is useless because it is satisfied by
anything done in the “public interest std.”
 The Dissent criticizes allowing Congress to delegate its power broadly.
Instead, The Dissent Argues for a stricter standard that is “sufficiently
definite and precise to enable Congress, the courts, and the public to
ascertain” whether Congress’s guidance has been followed.

Appointment/Removal Power (Article 2, Section 2)

Section 2: “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur; and he 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.”

- This article explains how the President will appoint members, but not how to remove officers.
o Implied Removal Power

Types of officers:

Principal Officers: Nominated by the President and confirmed by the Senate

Inferior Officers: Can go through the same procedure as principal officers, but Congress can deny this
procedure for every officer because it is time consuming and make their own scheme for approving
inferior officers.

Lesser functionaries/”Employees”

Annals of Congress of the United States 1789

- Unitary Theory

Edmonds v. United States: establishes that the test in determining “inferior officers” is whether
the person is “supervised at some level by others who were appointed by presidential
nomination with advice and consent of the senate.”
- Exceptions to Presidential removal (whom the president may not be able remove)
o Multimember expert agencies that do not wield substantial executive power
(could not be removed without good cause)
 President has “unrestrictable power…to remove purely executive
officers.” (within those multibody members)
o Inferior officers with limited duties and no policymaking or administrative
authority (could not be removed without good cause)
Dames and Moore v. Secretary Regan
- Facts: On November 4, 1979, the Iranian hostage crisis began when the American Embassy in
Tehran, Iran was seized. In response, President Carter, acting pursuant to the International
Emergency Economic Powers Act (IEEPA), declared a national emergency and issued an
executive order that froze all Iranian assets in the United States. Carter's administration also
ordered that lawsuits against Iranian interests in U.S. courts could not proceed without the
administration's approval. The administration granted a license for lawsuits against Iranian
interests, which allowed prejudgment attachment of property but not final judgments. Pursuant
to that license, Dames & Moore (plaintiff) sued Iran's Atomic Energy Organization (AEO) for
failing to pay Dames & Moore for work it had done on an Iranian nuclear-power plant. On
January 20, 1981, the American hostages in Iran were released pursuant to an agreement
reached between the United States and Iran. The agreement stated that the U.S. government
 would seek to end all pending litigation against Iran by referring cases to an Iran-United States
claims tribunal that was established to facilitate settlements. President Reagan subsequently
issued an executive order requiring the transfer of all pending cases to the tribunal and ordering
the transfer of Iranian assets to the Federal Reserve Bank to be controlled by the U.S. Treasury
for settlement purposes. After the issuance of the executive order, the district court stayed a
final judgment in Dames & Moore's favor in its action against the AEO. On April 28, 1981, Dames
& Moore sued U.S. Government officials including the Secretary of the Treasury (defendant),
seeking to prevent enforcement of the president's executive order and Treasury Department
regulations implementing the new agreement with Iran. The district court dismissed the action,
and the United States Supreme Court granted Dames & Moore's petition to review the case.
o Jimmy Carter blocked and then transferred Iranian assets and nullified any suits against
unless approved by the President. This was approved by Congress under the
International Emergency Economic Powers Act, which means the President had the full
power to do what he did (under Justice Jackson’s framework.) Reagan suspended the
claims which is being challenged by the Ps because they deem it is unconstitutional for
the president to have this power.

- Rule: In Dames & Moore, the Court strongly emphasized both the claims settlement context
(which, it noted, had a long history of presidential authority) and the fact that Congress had
‘acquiesced’ in presidential claims settlement by not objecting and by passing facilitating
legislation. However, the court has said that this is a narrow holding that is limited to settlement
agreements.

Treaty
- Can be enforced by 2/3 majority in senate or by Congress
- Treaty is on the same level as statute
Medellin v. Texas

- Question 1: Is the ICJ’s judgement in Avena directly enforceable as domestic law in a state court
in the US?
o No it is not because it is a non-self executing treaty

- Question 2: Is the president’s order to make the treaty binding valid?

o No, the president lacks the power to make a non-self executing treaty into a treaty.
According to Medellin, if the president tried making the treaty binding through an
executive agreement, they cannot do this the same way they can do it with settling
agreements like in Dames and Moore. This indicates that the executive order agreement
is narrow to settling agreements.

Zibowtowski v. Clinton
CLAUSES MENTIONED
(Flast v. Cohen):
 Under the 1st Amendment:
o Establishment Clause – Prohibits the federal government from supporting the
establishment of any religion.
o Free Exercise Clause – Prohibits the federal government from hindering the
exercise of religion

o Guaranty Clause (Article IV, Section 4 of the Constitution): Guarantees a

republican form of government to the states
 Claims of Guarantee Clause are nonjusticiable from Luther v.
Borden; Guarantee Clause claims are left for Congress to enforce

o Elections Clause: Article I, § 4, clause 1 of the U.S. Constitution, which provides

that state legislatures set the times, places, and manner of holding congressional
elections, unless Congress chooses to make or alter those arrangements.

o Article III: Case or Controversy Clause: Minimum constitutional-standing

requirement (Up to Supreme Court to decide how to apply the clause)
AMENDMENTS MENTIONED
10TH Amendment: Article I, § 4, clause 1 of the U.S. Constitution, which provides that state legislatures
set the times, places, and manner of holding congressional elections, unless Congress chooses to make
or alter those arrangements.

- When we talk about the tenth amendment claims, it is just a shorthand for large
constitutional principles. When someone is claiming that the tenth amendment, they are
basically saying Congress is executing a power that is not enumerated, and therefore,
given to the states.