Professor George Garvey
Christopher S. Lee
The Judicial Function in Constitutional Cases
Review – The power of the SC to define its own powers, as well as review the
powers of other Branches of Government.
Marbury v. Madison
Legitimacy of Judicial Review
Authority of Supreme Court
Branch creates Laws
Branch Executes Laws
Branch Interprets the Laws
& Prudential Limits
assert rights of 3rd parties. No generalized grievances.
v. Prudential Bases
Barrier – Congress can’t waive.
acts as self-regulator imposing own juris.
(b) SC decides
it is unwise for it to decide case.
Mootness & Ripeness
Nonjusticiable Political Questions
Questions assigned to Political Branches.
reasons to refuse (assuming case-in-controversy)
embarrassing to Gov’t.
& Foreign Policy Issues.
Court Authority to Review State Court Judgments
Martin v. Hunter’s Lessee
of the Federal Constitution, Laws, Treaties,…
of Interpretation of Laws.
does have Authority & Juris to review ST decisions.
Cohens v. Virginia Supreme Court
- Original Jurisdiction v. Appellate Jurisdiction
Judge appointees v. State Judge Electees
III – Framework for Judicial Branch
Creation of Lower Courts.
Restraints on the Judicial Branch
Senate confirmation of Judges
Appellate Jurisdiction created by Congress
Federal Question issues subject to Congressional Changes.
Restraints on the Supreme Court: May Congress Strip the Court of Its
SC – The
case, not the party, determines Jurisdiction.
Ex Parte McCardle
a) Issue: Did SC have Jurisdiction to hear
creates Jurisdiction, and removed prior to this case.
SC can’t hear case, dismisses.
can’t review Congress’s motives; must accept at value.
Congress removes SC Jurisdiction, ST CT’s decide.
Internal and External Restraints
Congressional Control of Lower Courts
Background and Present
Initially all matters regarding Federal Rights were
1920’s – Certiorari & Right of Appeal.
1988 – Certiorari only. SC given discretion on all matters.
Certiorari requires 4 Justices to vote for hearing case.
Denial of Certiorari means no Prejudice
Types of cases
between State SC’s
The Structure of Government: Nation and States in the Federal Systems
Powers and Local Activities:
Origins and Recurrent Themes
Federalism – Relationship between the State and Federal
Hole Federal & State Ownership
Powers of Federal Government.
else belongs to States.
& Purpose of Government
(2) Gets away
(4) What is
the function of Government?
by collapse of Articles of Confederation
– Picks & chooses which ones to use
democracy by keeping power close to people.
tailored to local needs, tastes.
to organize as chose.
for what States can’t provide; Defense
States creating negative externalities; exporting problems elsewhere
Balkanization – Trade wars between states.
with other Nations
of Constitution & Principles
conflicts between states.
states from engaging in “race to bottom”.
McCulloch v. Maryland
- SC has ONLY authority to resolve issue.
of Federal Power is the People.
Source of Power is the People.
enumerated powers – Fed is Supreme.
supports Supreme Powers
Superior to States
& Proper Clause
– It’s a Constitution we are interpreting.
Constitution doesn’t provide details; therefore
Allows for Interpretation & IMPLIED Powers
& Implied Powers to make enumerated powers.
Marshall – creates Doctrine of Implied Powers
It’s a Constitution we are interpreting.
Framers left room for Interpretation
Establishes Strong Central Government
Necessary – Enlargement of Federal Powers
Necessary – Appropriate
Necessary – Convenient
“Let the ENDS be legitimate.”
Pretext – Proper beginning to achieve unfair end prohibited.
Power – Any power chosen by Congress
to tax is power to destroy. One
sovereign cannot hold power to destroy a higher sovereign.
Implied Powers and the Necessary & Proper Clause
Restraints on Congressional Power
(1) J. Stevens
– States can’t retain what doesn’t exist.
(2) J. Thomas
– States are repositories of all powers not vested in the Constitution to
Federal Gov’t. Strong supporter
of States’ Rights, weak Federal Government.
of the Commerce Power from 1824 - 1936
Gibbons v. Ogden
to regulate Interstate Commerce.
Test - Power to regulate Intrastate Commerce which affects Interstate
Champion v. Ames – Lottery Case
the ends proper?
has power to limit evils
(2) Plenary -
Expanding Federal Powers
Regulation is State Police Power Issue
Issue – Beyond Federal Powers
Hipolite Egg v. U.S.
Gov’t can adopt rules to protect the public.
Hammer v. Dagenhut
being shipped is not evil.
competition between States.
(4) Goods of
Child Labor will compete with other ST laws.
Dissent – If there is any evil, it is Child Labor
stage for future clash with FDR’s New Deal
Schechter v. U.S.
and Price Setting Case; Attacks
FDR’s New Deal
affect IC directly.
(2) Effect on IC
governs Direct Commerce.
(4) Sale of
chickens not IC, not Direct effect.
of legislative responsibilities to private parties.
will run riot.
(3) Commerce –
Sale of chickens not IC.
Categorical “Direct v. Indirect” approach.
(5) Looks at
the big picture and looks at whether there is a justification for Federal
Approach - Judges must balance competing issues
of Coal Mining Industry controlling prices and collective bargaining.
Gov’t. – National Issue & National Problem
labor relations and commerce.
v. Commerce Issue
can’t be regulated by Fed Gov’t.
activities can’t be regulated by Fed Gov’t
– Fed Gov’t Regulation
– State Gov’t Regulation
(6) Powers of
Fed Gov’t not expanded by Nat’l Problem.
is the effect on IC?
(b) Is it
being applied evenly to not do harm?
went too far.
Coal is appropriate use of CC.
FDR’s Court Packing Plan/Threat
of Limits on the Commerce Power: 1937
NRLB v. J&L Steel Corp.
– Effect on Commerce and not Specific Case
Substantial Effect – Fed. can regulate
Schecter & Carter Coal
– Follows Cardozo’s Carter Coal decision
Gov’t follows up with
(1) Throat of
(2) Stream of
Commerce Test - Some corps. Industries are so connected to the stream of
commerce the effect Commerce and can be regulated.
Test – Does it effect IC?
Practical Effects Test – Determines power of Congress
Wickard v. Filburn
Fed. to aggregate effect.
– Too remote to consider.
arena has power to check Judicial responses if too far reaching.
U.S. v. Darby
of wage and hours in local manufacturing.
Explicitly overrules Hammer Child Labor Case.
Broad Reaching Powers for Fed Gov’t.
difference between production and commerce.
of working conditions, not commerce.
SC – Substantial Effects Test
– Congress may pursue own Public Policy Goals.
– People will serve as check to Congress
SC – Pretext Language
(1) If means
are Police Power, Federal Regulation can be struck down.
(2) If means
are Commerce Power, Federal Regulations can’t be struck down.
10th Amendment is a Truism; All that the Fed has is All, but it isn’t a limitation.
Darby Decision Outcome
are no longer barriers.
Amendment is a Truism
and Federal Gov’t can affect all commerce.
can be used to arrest Immoral Activities – Civil Rights
Limits on the Commerce Power
of Interstate Commerce
(2) How far
should Fed v. ST rights go?
(3) When does the
Fed go too far?
(4) SC puts
breaks on Commerce Clause
(5) J. Thomas
to return to pre-1937 Position
production, labor not IC.
reading of CC.
(6) J. Bryer
Effects Test – Lower Standard.
Basis – Congress Decides
Basis – Congress Prevails
York v. U.S.
(1) Can Fed
Gov’t induce States? Yes
crosses line from inducement to coercion.
can’t discriminate against other states.
Congress can give states authority do so.
(4) Fed can’t
hand out money for unrelated reasons.
(5) Fed Gov’t
Pre-Emption Power – Take away and Regulate any industry it chooses to do so.
Handgun Violence Act
(2) Fed can
commandeer ST CT’s to carryout Fed Policy.
(3) Fed can’t
commandeer ST/Local employees for Fed Policy enforcement.
Restraints on Other National Powers in the Constitution
The Taxing Power as a Regulatory Tool
SC – Any
revenue raising Tax is Permitted.
The Spending Power as a Regulatory Tool
v. Butler (1936)
of States’ Rights
(b) Fed can’t
buy what can’t do directly.
can’t induce by spending money.
Problem requires Fed Regulations
can’t deal with problem individually
Must be a “True National Problem”
Can’t coerce ST control.
Conscience of Congress
War, Foreign Affairs, and Federalism
Dakota v. Dole
Age and Transportation Grants case
Shoehorns Necessary and Proper Clause
(b) No Limits
Limits – Spending Power
spending with Necessary and Proper Clause
Limits on State Power to Regulate the National Economy
State Regulation and the Dormant Commerce Clause
Unexercised Federal Gov’t acts as restraint on ST Gov’ts
Police Power (all powers of state)
(Johnston’s concurrence in Gibbons)
States can regulate indirectly.
No clear roadmap to follow.
Test – Newer SC following.
Basis Test – State always prevails
(1) Gibbons v.
(2) Wilson v.
applies Balancing Test
interest greater than Fed’s Interests
(3) Cooley v.
Board of Wardens
pilots for PA waterways
(b) Direct v.
Modern Court’s Approach
(1) Pike v.
Bruce Church, Inc.
(a) Is statute
prevails if statute not discriminatory, very local and incidental.
v. New Jersey
– Always struck down
purpose, illegitimate means.
(iii) Virtual Per
(iv) Redline Issue –
& Proper Clause
(vi) Pike Test
(4) Dean Milk
v. Madison County, WI
it discrimination against IC?
(b) SC –
Doesn’t use Virtual Per Se Test; law applies to in-state and out-of-state
(c) SC –
Doesn’t use Rationality Test – Finding reasonable way to pursue issue.
cases – Barrier imposed at ST border.
(e) SC –
Make other milk plants pay for Inspector travel costs. Effects Test burden; Use the least
discriminating method to resolve issue.
determines which options are best
to allow CT’s to decide options; Legislature & people should set &
(5) Baldwin v.
protectionism for in-state producers.
Argument; efficiency, free flow of trade, promotes economic growth;
Agreement; Barriers might split apart states; Potential for Economic Warfare.
– ALWAYS Loses
Test – Used in Grey Areas
(6) Hunt v.
Washington State Apple Association
Effect – Discrimination against out of state apple growers.
Practical Effect BOP shifts to D to show
Benefit to D/State
No less restrictive method/ discrim.
(7) Byrd v.
City of Alexandria
(c) KEY: SC deals with problems differently.
(d) KEY: Different practices at different
(8) SC Highway
v. Barnwell – Trucking Case
Carolina prohibits large & wide trucks
(b) J. Stone
Basis Test – Okay if not discriminatory.
& Interstate is not discriminatory.
(iii) Rely on
legis & political process to resolve issues
(iv) SC only
intervenes when law is arbitrary or irrational.
Pacific v. Arizona
numbers on Rail Cars
(b) DCC – No
(c) SC –
Cooley Test – Local v. National Regs.
Basis Test – Tipped in favor of AZ.
Basis Test not used.
decides burden of free flow of commerce; Safety issues.
Barnwell Non-Discrim. Test
(iv) RR historically
treated as Fed. Enterprise
Regs treated as ST issue
Kassel v. Consolidated Freight
ST Reg prohibiting doubles > 60 FT
Statutes – Given strong presumption of validity.
v. Commerce Clause Balancing Test
part questions motives.
Factor – Actual Intent
(iv) Virtual Per Se
bona fide safety reg – Rational Basis Test; left to legis. to decide.
has overstepped bounds.
law designed to keep trucks from damaging ST’s highways.
Exxon v. Maryland
ST divestiture law.
Discriminatory – All refiners affected.
– Virtual Per Se Invalidity
(d) Outcome –
MD Law upheld
is a Pestilence
Independent Dealers have Clout
law; but finds major problem is the Big Oil Refiners
Edgar v. MITE (1982)
strikes IL anti-takeover law.
with Securities & Control of Corps.
Model – Balancing Model
CTS v. Dynamics Corp (1987)
(a) IN law
(b) SC –
Non-Discrim. because effects IN only.
aimed at NY Investment Bankers
(d) SC –
Tender Offers are Pestilence; Regs Okay.
Inconsistency with Edgar case.
Market Participant Exception to the Dormant Commerce Clause
The Privileges & Immunities Clause of Article IV
Prohibits discrimination by state against non-residents.
Promotes IC harmony.
Union through Individual Rights
Protection against Discrimination of Individuals.
National Citizenship – Right to Interstate Travel
Right to Employment protected by P&I Clause
ST must show substantial reason to discriminate
(intermediate scrutiny); AND
Restrictive Test = Strict Scrutiny; Rational Basis
Building v. City of Camden
40% set aside required for City Public Works K’s
NJ SC Rejects Statute – Discriminatory
– City can use set aside.
Clause extends to subdivisions of ST.
Clause doesn’t apply to Market Participant
only applies to certain Fundamental Rights
can engage as Market Participant and attach strings to K’s; Not a Regulation.
Congressional Ordering of Federal- State Relationships by
Preemption and Consent
of State Authority
State Energy Commission of California
Is CA ban preempted by U.S. Act?
Is there preemption?
What is the extent of preemption?
What is explicit & implicit?
(b) SC – Can
find preemption of National issue with limited scope.
(d) What is
traditionally done by States?
– State traditions left to states.
– State traditions left to states.
Preemption – SC won’t interfere with Congressional intent. Must have clear and implicit intent.
– Safety Concerns; ST – Economic Concerns; roles reversed from traditional :
ST issue – Political reaction to fear of Nuclear
– Safety not enough to curtail construction.
can grant power to States for DCC issues, but CAN’T grant P&I Clause
to State Laws
Authority to Make National Policy:
The Conflict between Executive Authority & Legislative Powers
Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure
seizes all steel mills after labor strike shut down.
– Seizure not authorized by law
and Chief exercising power during Korean War.
Powers – Inherent to President; beyond strict, literal reading in Article II.
Powers – Shared by Executive & Legislative Branches
(1) Look to
Presidential behavior becomes accepted over time.
may be allowed in future; but not now.
J. Jackson Concurrence
FDR’s Seizure powers during WWII
(3) Nature of
(4) No clearly
defined Bright Lines of Power
(6) Too much
Presidential power can lead to tyranny
must maintain own power.
must protect itself from Presidential Power
(1) Grant from
Congress – Only struck if outside powers; President at Peak of Power; Extreme
defies Congress – Weakest (arguably strongest); Power so vested in President,
even Congress can’t stop; Extreme approach
action in light of Congressional Inaction or silence. Middle of the Road/Twilight approach.
Vinson – Dissent
should be able to act.
is not a messenger boy.
has power to do what he needs to do under the given circumstances. Congress can check the power if
of Powers: Congressional
Encroachments on the Executive’s Domain.
Separation of Powers
Substantive Due Process
Non-Economic Substantive Due Process
Freedom of Speech
NOTES: Focus on
Like Principles with Like Cases
Privacy – Abortion,
Suicide, Marriage, Contraception
where Substantial Due Process Applied/Expanded
See: Privacy, Work, Education, Race,
Voting, Gender, and Ethnicity
Autonomy protected, but not completely.
the gov’t violated a person’s interest in life, liberty, or property?
the right fall into marriage, child bearing/raising (fundamental)?
is the substantive due process right being violated?
it a fundamental right being violated? (Privacy/Autonomy)
the State have a necessary means to achieve a compelling end?
the State or the Federal Government imposing the burden?
5th v. 14th Amendments
the government intentionally treating the class differently?
there a legislative Classification?
there discrimination? One class
being treated less favorably than another?
10. Is it facial or
Statute textually discriminates
As Applied –
How the statute is carried out
11. Is the statute a
state/local or Federal law?
12. What level of
review should be applied?
Due Process – all persons affected
“[n]or shall any state
deprive any person of life, liberty, or property, without due process of
law…” 14th Amendment, Section 1.
arbitrary imposition of purposeful restraint invalid
scrutiny of the standards asserted to justify their abridgment
ratchets up to strict scrutiny
v. Non-interpretative Modes – SEE Handouts
Procedural Due Process – taking a person’s life, liberty or property.
Rights – Strict Scrutiny
– Right to Privacy
Right = Strict Scrutiny
Right = Rational Basis
other Cases – Rational Basis
Economic Statutes Upheld since 1937
of former slaves
(2) not Class
Clause – Substantive Rights – Only Nat’l Citizenship
– No relation to fundamental substantive right
Rights Drain” on Equal Protection
– Implicit in the concept of ordered liberty.
Modern – Fundamental to the American scheme of justice.
Process implicit on “Ordered Liberty”
Law Approach – Fundamental inalienable rights. Justices make decisions on own principles; fundamental
rights. God given laws
Law Approach – Law is what is written.
v. New York – Due Process – Strict Scrutiny
Liberty, or Property
Powers v. Individual Rights
& Safety v. Labor/Property/K rights
– Strict Scrutiny; Property Rights prevail
(1) Nature of
Job requires long hours
(2) Sui Juris
– Adult men can take care of themselves
(3) Women and
children can have protection
(1) Legality, not
wisdom of the law.
(2) Does the
(4) Real v.
Substantive Relationship? YES
(4) State must
stay out of business issues
(5) Let the
political process decide
Basis for Socio-Economic Laws
Scrutiny for Fundamental Rights Laws
v. New York – Intermediate Scrutiny
Decades after Lochner
Harlan’s Lochner dissent
& Welfare v. Property Rights
(3) Not arbitrary
v. Lee Optical – Rational Basis with a Vengeance
have rational relation to a legitimate state interest.
no scrutiny exists.
given great deference.
Products – Rational Basis; Filled milk case
level of scrutiny.
& Insular Minority
response from Legislature
groups can’t achieve results through political process; therefore Judiciary
has special, protective responsibilities.
(4) Power v. Economics; Politics v.
of facts support the legislative judgment is to be presumed. But Discrete and Insular minorities
have special protection when personal rights are burdened.
VI. Takings Clause
& 14th Amendments – prohibits taking of private property “for
public use without just compensation.”
on State to take without compensation
of Power, not Grant. Taking must
be for public purpose and just compensation must be paid.
of the Interference
of the Action
of Economic Value – Lucas v. SC Costal Council
Economic Value – Pennsylvania Coal & Keystone cases
Taking – Heightened Scrutiny
& Safety v. K Rights
Ordinances – Penn Central – Intermediate Scrutiny
Permits – Nollan & Dolan cases
of value no longer SC focus
Freedom of Speech
Regulation – Strict Scrutiny
Regulation - Intermediate Scrutiny
– Time, place, and manner regulations permitted
Forums Regulations must be narrowly tailored to meet an important government
Forums Regulations must have a reasonable relationship to a legitimate regulatory
and Present Danger of imminent lawless action.
words defined by narrow, precise statute.
City of St. Paul
– Child Pornography.
(1) Taken as a
(2) By the
contemporary community standards.
(1) Appeals to
prurient interest in sex;
sex in a patently offensive way;
(3) Has no serious
literary, artistic, political, or scientific value using reasonable person
via civil tort suit.
figures must prove malice.
of false stmt; or
disregard of truth or falsity
figures must prove negligence
or deceptive advertising.