Constitutional Law (Poli 420) Final

80 MC questions, I need to start studying now

Federalist 76

A single executive is the best (one person)

The president decides who is in office through appointments

No constitutional limits on the grounds for Senate rejection

Appointment and confirmation are split between the branches to prevent favoritism and ensure good candidates

Trump v. Wilcox (2025)

Facts: Shadow docket case, Trump fired Wilcox (NLRB) and Harris (MPSB) without cause, even though statutes provided for removal only for-cause

Issue: Should the lower court order be stayed? Is govt likely to prove that terminations were constitutional?

Holding: POTUS may remove executive officers, subject to narrow exceptions.

KEYS:

• Risk of Harm: Harm greater if plaintiffs were to receive their office again than if their removal stayed

• Considerable Executive Power: narrow exceptions for when a president cannot remove an agency head

Supreme Court Appointments

Purpose: ensure accountability, preserve liberty, and avoid tyranny (Federalist 76)

Nomination: The President has plenary power to nominate. “In [nomination], his judgment alone would be exercised (Fed. 76)

“Advice and Consent”:

• no express constitutional limits

• possibilities: experience, age, judicial philosophy, politics, balance

• “special and strong reasons for the refusal” (Fed. 76),

• Anti-federalists argued that this clause gave the executive too much power (“substantially vested in the [exec.] alone”)

Qualifications: none in Constitution (age, citizenship, education, or lawyer)

Immigration Naturalization Service (INS) v. Chadha

Facts: Chadha, a Kenyan citizen who overstayed his visa and was ordered to attend a hearing, INS suspended deportation because he had good moral character and would suffer extreme hardship. Congress used a legislative veto to reverse

Issue: Legislative veto?

Holding: No. The legislative veto violated bicameralism and presentment requirements

Key Points: convenience, efficiency, or usefulness arguments don’t hold, still cannot violate the Const. Bicameralism and presentment are required (1.7)

Separation of Powers concerns: improper blending of exec. and leg. powers

Congress can delegate

Recess Appointments

Constitution: “The President shall have 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 their next session.

Hamilton (Fed. 67): not monarchical power; “nothing more than a supplement.”

1. When does a “vacancy” occur?

   1. “Arise” view: appointment allowed only if the vacancy arises during a Senate recess

   2. “Exist” view: appointment allowed if vacancy happens to exist during a Senate recess (if resignation happened during a session but was never filled)

2. What is a “recess of the Senate”?

   1. Intersession view

   2. Intrasession view: any time advice and consent can’t practically be given

NLRB v. Canning (2013): arise and exist are right, recess may be intrasessions, but less than ten days is “presumptively too short.”

Biden v. Nebraska (2023)

Standing: Missouri and MOHELA, the state represents MOHELA (which had standing through $44M/yr damage)

Major Questions Doctrine (MQD): Executive actions of vast economic and political significance require clear congressional authorization

Holding: Exceeded statutory authority, “modify” didn’t mean forgive all loans, didn’t “waive” any regulation

SOP: executive taking the role of leg.

Trump v. Am. Federation of Gov’t Employees (2025)

Facts: Executive order to consider “a critical transformation of the Federal bureaucracy” by “initiating large-scale reduction in force (RIFs), consistent with applicable law.”

Supreme Court stayed the injuction

Non-Delegation Doctrine and Tests (Quiz 5)

Principle: Congress cannot give away its legislative power. Ar. 1 vests all legislative power in Congress - if Congress simply hands that power to another branch, it violates the Constitution's structural separation

Intelligible Principle Test: Hampton & Co, a delegation is valid if Congress lays down an intelligible principle to which the executive must conform. Once the principle is established, the executive can fill in the details. (Wayman)

• Although that principle can be relatively vague (Nat’l Broadcasting)

Panama v. Ryan, the statute gave the president power with no conditions attached, a total absence of guidance. struck down because Congress established no standard

Schechter Poultry Corp v. US: maximum hours and minimum wage laws, Schechter Brothers broke it, Congress gave no definition or criteria, no limiting principle for what counts as fair, the delegation ran not just to the president but to private industry groups

South Dakota v. Dole (1987)

When can Congress attach conditions to federal spending to pressure states? What are the limits?

Holding: Constitutional.

Test: Congress may attach conditions to spending if:

(1) in pursuit of the general welfare,

(2) conditions are stated unambiguously,

(3) reasonably related to the purpose of the expenditure,

(4) does not violate any other constitutional provision,

(5) cannot be so coercive it becomes compulsion.

Facts: Congress withheld 5% of highway funds from states that didn't raise the drinking age to 21 — held to be inducement, not coercion.

NFIB v. Sebelius (2012)

Q: What did Sebelius say about Congress's power to regulate inaction, impose mandates, and condition Medicaid funds? ACA w/ individual mandate, requiring most Americans to purchase health insurance and imposing a penalty if they did not.

A: (1) Individual mandate — invalid under Commerce Clause. Congress can regulate economic activity, not inaction. Forcing someone to buy insurance regulates the decision not to act.

(2) Penalty — valid as a tax. Functions as a tax, raises revenue, collected by IRS. Congress can tax inaction even if it can't regulate it.

(3) Medicaid expansion — invalid as written. Threatening to strip all existing Medicaid funds crossed the Dole line ("gun to the head"). Conditions may only attach to new money, not threaten existing funds.

Cannot be coercive

KEY POINTS:

• “Regulate”: presupposes the existence of commercial activity; not the power to create

• Action vs. inaction: Congress cannot punish inaction by compelling action

  • Vegetables: If power extended this far, we could be compelled to buy veggies

• Necessary & Proper: Doesn’t grant new substantive powers (e.g., compel comm.)

Intergovernmental Tax Immunity

Q: What are the key rules governing intergovernmental tax immunity?

A: (1) Direct taxation — states may never tax the federal government directly (McCulloch, 1819: "the power to tax involves the power to destroy"). Federal taxes on states not automatically invalid; some direct nondiscriminatory federal taxes are allowed.

(2) Private parties — states may tax private persons/entities dealing with the federal government, and vice versa.

(3) Nondiscrimination rule — state taxes must not discriminate against the federal government or federal pay (Davis v. Michigan, 1989). Federal taxes generally may not single out states or those who deal with states for unfavorable treatment.

(4) Interference threshold — federal supremacy and essential federal functions cannot be impaired; essential state functions generally cannot be impaired either.

History of the Income Tax

Hylton (1796): Carriage tax as an excise tax, only direct taxes need apportionment (first ever judicial review of congressional action)

Springer (1881): First case to uphold income tax, income tax is not a capitation (direct tax); doesn’t need apportionment

Pollock (1895): federal income tax struck down because direct taxes must be apportioned (2% tax on all incomes over $4K), went against Springer

16th Amendment: Established income tax, now is explicitly constitutional

Tax Restrictions for Federal and State Governments

1. Geographic Uniformity (“…shall be uniform throughout the US”)

2. No state export tax (goods from the states)

3. Only proportionate direct tax

4. No state taxes on exports, imports, or cargo capacity (very narrow exception)

National Pork Producers Council v. Ross (2023)

Facts: CA Prop 12 banned the sale of pork from pigs raised in confined conditions, thereby regulating out-of-state farming practices. Industry groups alleged violations of the dormant Commerce Clause.

Holding: Affirmed — Prop 12 constitutional

1. No extraterritoriality violation (no purposeful discrimination against out-of-staters, states may set standards for goods sold in the state)

2. No Pike balancing violation (but lots of different opinions, did Pike work here? How do we balance morality with economics?)

Principle: States can regulate in-state sales even if it pressures out-of-state conduct, as long as there is no purposeful discrimination

Pike Balancing Test

Courts must where the burden imposed on interstate commerce with local benefits the law provides

Law that are clearly excessive relative to the local benefit they provide are struck down

The basics of the administrative state.

Agencies created by Congress / President to implement laws; create / enforce / interpret regulations. Executive Agencies (DOT, DOJ, 15 cabinet secs) vs Independent Regulatory Agencies (FTC, FCC, FEC).

History: Progressive/Populist Era (Fed, FTC), New Deal (SEC, FCC, NLRB), Great Society/Post-War (Civil Rights, Education, Medicaid, Social Security), Deregulatory (Reagan, Clinton), Trump (Schedule F, DOGE)

Chevron — deference to agencies on ambiguous statutes

Loper Bright (2024) overruled Chevron — no more judicial deference.

Differences between the heads of executive agencies and independent regulatory agencies.

Executive Agency Heads: Serve at president’s pleasure, removable at will; policies meant to mirror the President’s agenda

Independent Regulatory Agency Heads: Non-partisan, expert-driven rather than aligned with any one administration, multi-member boards/commissioners, only removable “for cause”

Congress's power to investigate

Not enumerated power but implied (Necessary & Proper), inherent to the legislative function

Valid legislative purpose (Kilbourn, McGrain), respect constitutional rights (Watkins)

Trump v. Mazars (2020)

Subpoenas must

1. Further a valid legislative purpose

2. be no broader than necessary (narrowly tailored)

3. not impose unreasonable burdens on the President (not interfere with essentail executive functions)

Congress's power of impeachment and its history.

Congress can impeach the President, VP, and civil officers. Treason, bribery, or high crimes & misdemeanors. The House impeaches, the Senate convicts, and the Chief Justice presides if the President is being impeached.

Andrew Johnson was first president to be impeached. (Nixon, Clinton, Trump)

Trump v. Anderson (Sec. 3 of the 14th Amendment) — insurrection

House brings charges, 2/3 convicting vote in the Senate

Basics of the Commerce Clause

Text: Congress shall have power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes (183)

“Regulate” — O: make rules to maintain uniformity and order, M: exercise broad, extensive control

“Commerce” — O: buying, selling, and bartering of physical goods, M: all forms of economic activity (channels, instrumentalities, activities affecting commerce)

“…among the Several States” — O: trade that crosses border or directly impacts more than one state, not wholly local, M: interstate activities and purely intrastate activities that individually or collectively have an impact (whether direct or indirect) on nat’l or ISC interests.T

Basics of the Dormant Commerce Clause

The Const doesn’t expressly deny the states the power to regulate interstate commerce

Principle: when Congress is silent, states still may not enact protectionist or unduly burdensome regulations that interfere with ISC

States cannot impose a substantial burden on ISC unless they regulate even-handedly (no discrimination), fulfill a local public interest, or impose burdens that are not “clearly excessive.”

Cantalopes in AZ

Categories of interstate commerce that Congress may regulate under the Commerce Clause

Manufacturing, police powers, interstate criminal activity, and labor standards

Activities that, in the aggregate, would impose a burden on ISC

Wickard (grain grown for personal use, high water mark)

Heart of Atlanta (Civil Rights enforcement through ISC)

Gonzales v. Raich (home-consumed marijuana, Congress can regulate individual activities that are part of an economic class of activities that substantially affect ISC)

United States v. Lopez (1995)

Facts: HS senior arrested for carrying a concealed handgun and ammunition in a school; charged under Gun-Free School Zones Act (knowingly possessing a firearm near a school was illegal)

Issues: Does C have the power to outlaw possession of firearms in a school zone?

Holding: outside of Congress’s commerce clause power

KEYS:

Commerce Clause: enumerated, not unlimited power; Congress may regulate channels, instrumentalities, activities that substantially affect ISC

Commerce Analysis: firearm possession: not a channel, not an instrumentality, and not an economic activity (nor does it substantially affect ISC)

• If Congress is allowed to regulate non-economic activities with no clear channel or instrumentality, there is no limit on its ISC power

Legislative Findings: none; “costs of crime” and “national productivity” are insufficient

Jurisdictional Element: no “across state lines” requirement; no broader regulation

Gonzales v. Raich (2005)

Facts: Raich and Monson grew and used medical marijuana under a CA law; however this was illegal under the Controlled Substances Act, DEA destroyed Monson’s marijuana; both sued feds

Issue: Can Congress regulate intrastate manufacture/use of marijuana, even if state law permits it for medical purposes?

Holding: Yes. Congress has authority under Commerce Clause to prohibit local cultivation and use of marijuana.

KEYS:

• Wickard 2.0 (regulate intrastate commerce if in the aggregate it substantially affects ISC)

• Deference: Congress had a rational basis to conclude which economic activities it regulated (affected ISC)

• Class of Activities: Congress can regulate activities that are part of an economic class that substantially affects ISC

Congressional Control over SCOTUS appellate jurisdiction

Exceptions: “…with such Exceptions, and under such Regulations as the Congress shall make.”

Wiscart: Although Congress can define/limit appellate jurisdiction, SCOTUS is authorized to review federal circuit court decisions in “civil cases”

Barry: SCOTUS possesses no appellate power in any case, unless conferred upon it by an act of Congress

Pending cases:

Ex Parte McCardle (1869) — journalist arrested, tried; habeas corpus petition; while pending, Congress repeals habeas jurisdiction of SCOTUS, lacked jdxn

Patchak v. Zinke (2018) — prop. owner challenges fed tirbal land designation; while case pending, Congress strips fed courts of jurisdiction of specific land. Congress may limit jdxn. of pending case, but can’t direct the outcome.

Congressional Checks on the Executive Power

Legislative Powers Generally:

• Laws define scope of executive authority to enforce, veto override, appropriations (purse power) and defunding

Foreign Affairs:

• Power to regulate commerce with foreign nations, treaties, only Congress can declare war, War Powers Res.

Oversight of Appointments:

• Senate confirmations, limit recess appointments

Removal/Investigation:

• Impeachment for high crimes and misdemeanors

Regulation of Executive Agencies:

• Congressional Review Act: overturn regulations, statutory oversight: require reports or other action, prevent Pres. from reorganizing/abolishing agencies

Executive Checks on Congressional Power

Legislative Powers Generally

• Veto: reject legislation, pocket veto (no signature for 10 days), call special sessions of Congress on urgent issues, SOTU

Foreign Affairs

• Speaks for nation on foreign policy, negotiates treaties, Commander-in-Chief; use of military

Criminal Enforcement

• Priorities for enforcement (prosecutorial discretion), pardon and commutations (congress can’t override)

Control over Executive Branch

• Appoint/remove executive branch officers, direct implementation of law consistent with priorities, Office of Information and Regulatory Affairs (OIRA)

Other “Powers”

• Executive Orders: direct agencies how to enforce law, signing statements, executive agreements with foreign nations (Paris accords)

SCOTUS strike downs

1. No Congressional Power (Lopez v. US)

2. Improper Delegation of Power (Schechter v. US, too much power given to executive)

3. Expressly Prohibited: US v. Lovett, bill of attainder

4. Violates Individual Rights: DC v. Heller, 2A

5. Violates Sep of powers: Clinton v. NY, line item veto unconstitutional, Chadka & legislative veto that bypassed bicameral structure

6. Violates Federalism: Printz v. US (1997): can’t force states’ CLEOs to enforce federal background checks

7. Statute vs Statute

• US v. Schooner Peggy, later treaty overrode earlier statute allowing seizure of enemy vessels

• KEYS

  • Intent matters: defer to Congress’s clear intent

  • Old vs. New: new governs over old, but is implied

  • Specific vs. General: specific governs over general

Vertical Federalism

Supremacy Clause

• Federal law is Supreme

• Fed const > fed statute > state const > state statute

• Federal Preemption (when fed law preempts state law)

  • Express Preemption (Congress explicitly states so, our law is supreme)

  • Conflict Preemption (impossible to comply w/ both)

  • Field Preemption (fed law occupies a field of law, immigration)

• Modern Application: environmental regulations, immigration law, drug laws

Guarantee Clause (guarantees republican govt for states)

• Republican form: system

• State autonomy: states have discretion to structure govt as long as generally republican in form

• Political question: generally, “republican form” disputes are nonjusticiable

• Protection: fed govt must protect states from foreign invasion and domestic rebellion

Horizontal Federalism

Full Faith & Credit Clause: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” (Art. IV)

• Problem: states exercise powers on same issue or dispute, leading to conflict or confusion

• Purposes: balance state sovereignty, ensure legal harmony, and limit relitigation of cases

• Out-of-State Judgments: must be given conclusive effect (but may follow local procedure to enforce)

• Out-of-State Laws: states may apply own laws if it has sufficient contacts with dispute; generally don’t have to enforce conflicting out-of-state laws; can’t close off courts completely to claims based on out-of-state law

• Modern Application:

Privileges & Immunities Clause: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” (Art. IV)

• Problem: state enact or enforce laws in ways that discriminate against citizens of other states.

• Purpose: prevent states from discriminating against out-of-state citizens in favor of own citizens

• Application: does law affect fundamental privilege or immunity (voting, employment, own property) or does the state have the governing interest?

• Intermediate Scrutiny: state law will be upheld if 1. there is a substantial reason for different treatment and 2. discrimination bears substantial relationship to objective

• Modern Application: employment, professional licenses, business activity, access to courts, property ownership, education, recreation (fishing, hunting)

10th Amendment

A Truism & Tautology:

TWO PURPOSES:

• Rule of Construction: so that the Bill of Rights isn’t interpreted to imply the existence of federal powers that don’t exist

• Reaffirm Federalism: (a) state and federal sovereignty (dual federalism), (b) limited powers of fed gov’t

Why powers reserved to the people?

• originally just to the states but… for popular sovereignty and to express that individuals hold rights and powers independent of federal and state govts

Two Views of 10th Amendment

Originalist View:

• 10th Amendment Doctrine

  • Federal govt has enumerated powers only; all others are reserved to the states

• Dual Federalism (not cooperative)

  • Clear demarcation between fed and states

• Substantive protection of states

  • Feds can’t control states or force states to act

Modern Realist View:

• 10th Amendment Truism:

  • doesn’t prevent fed govt from restricting states

• Cooperative Federalism

  • strict fed/state separation no longer comports w/ reality, modern contexts require cooperation (welfare, education)

• Broad interpretation of ISC

  • Tax & spend clause, necessary & proper

11th Amendment