Constitutional Law

PSL Constitutional Law, Section 201, Spring 2025

What is the U.S. political system constituted as?

A (1) federated; (2) liberal; (3) democratic; (4) republican; (5) nation-state

What are the basic aspects of the U.S. Constitution?

• Power is divided between three branches of government: (1) Legislative; (2) Executive; and (3) Judicial

• There are checks and balances between these branches of government

• Power is distributed within each branch (except maybe a unitary Executive)

• Staggered elections for Legislative officials

• Elected President

• Appointed judges with lifetime tenure

What are the three senses of the Constitution?

The “Constitution” can refer to:

1. Something we have

2. Something we do

3. Something we are

What is the constitutional role of the courts?

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret the rule. If two laws conflict with each other, the courts must decide on the operation of each.”

What are some major limits on judicial power?

• Subject matter jurisdiction

• Personal jurisdiction

• The “case of controversy” requirement (including standing and mootness)

• Justiciability

What is subject matter jurisdiction?

A courts authority to hear a specific type of legal dispute

Explain Marbury v. Madison (1803)

RULE OF LAW: The United States Supreme Court has the authority to review laws and legislative acts to determine whether they comply with the United States Constituion

What is the rationale for judicial review?

Either the Constitution is the highest law that cannot be changed by ordinary legislation, or the legislature has the power to change it like any other law—there’s no in-between. If the legislature can ignore constitutional limits, then those limits are meaningless, and there’s no difference between limited and unlimited government. If a law contradicts the Constitution, it is invalid, and courts should not enforce it, because doing so would undermine the Constitution in practice, even if it’s upheld theory.

What is the Standing (Article III) Test?

• To have standing there must be:

  1. Injury: (A) Concrete and Particularized, and (B) either completed or “actual and imminent”

  2. Causation: The injury must be “fairly traceable” to the defendant’s allegedly unlawful conduct

  3. Redressability: It must be likely that the court could repair/prevent/compensate for the injury by deciding the case in the plaintiff’s favor

• Mootness is essentially standing after a case has already begun/been filed

• Associational Standing (somewhat similar to how States are determined to have standing)

  • “An association has standing to bring suit on behalf of its members when: (A) its members would otherwise have standing to sue in their own right; (B) the interests it seeks to protect are germane to the organization’s purpose; and (C) neither the claim asserted nor the relief requested requires the particularization of individual members in the lawsuit.”

Explain Lujan v. Defenders of Wildlife (1992)

RULE OF LAW: Under Article III of the Constitution, a party does not have standing to litigate a generalized grievance against the government in federal court if she has suffered no personal injury other than the harm suffered by all citizens

What is justiciability?

The suitability of a legal matter for resolution by a court. It’s a concept that determines whether a case can be property heard and decided by a judicial body.

Explain Walter Nixon v. United States (1993)

RULE OF LAW: The constitutionality of Senate impeachment proceedings is a nonjusticiable political question incapable of judicial adjudication

Express Limits on States: “No State shall . . .”

• Enter into any Treaty, Alliance, or Confederation

• Grant Letters of Marque and Reprisal (essentially cannot have a “pirate license”)

• Coin money; emit Bills of Credit; make anything but gold and silver of Coin of Tender in Payment of Debts

• Pass any Bill of Attainder, ex post facto law, or law impairing the obligation of contracts

• Grant any title of nobility

Express Limits on States: “No State Shall, without the Consent of Congress . . .”

• Lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the use of the Treasure of the United States and all such Laws shall be subject to the Revision and Control of Congress

• Lay any duty of Tonnage (tax on a ship)

• Keep troops, or Ships of War in time of Peace

• Enter into any agreement or compact with another State, or with a foreign Power

• Engage in War, unless actually invaded or in such imminent Danger as will not admit of delay

Express Limits: States must do or give . . .

• Full faith and credit shall be given in each state to the public Acts . . . of every other state

• The Citizens of each state shall be entitled to all Privileges and Immunities or Citizens in the several states

• A person charged in any state . . . who shall . . . be found in another state, shall . . . be delivered upon . . . to the State having jurisdiction of the crime

• The United States shall guarantee to every State in this Union a Republic Form of Government

What is Federal Supremacy?

The U.S. Constitution, the federal laws made under it, and treaties made by the United States are the highest laws in the country. There is a clear legal hierarchy: (1) U.S. Constitution; (2) Federal laws and treaties; and (3) State constitutions and laws

What is the rational for Federal Supremacy?

If one state could control or interfere with the federal government, it would be unjust—because all the people of the United States gave power to the federal government together, for everyone’s benefit. Therefore, the federal government should only be controlled by the people as a whole, not by any single state.

What are the Implied Limits on State Power?

Intergovernmental immunity and the “Dormant Commerce” Clause

What is intergovernmental immunity?

States cannot regulate the united States directly or discriminate against the Federal Government or those with whom it deals unless Congress consents

What is the “dormant commerce” clause?

The Commerce Clause gives Congress the power to regulate commerce between the states, but Congress has not passed a law on certain types of commerce issues. However, even where Congress is silent, states still can’t pass laws that discriminate against or put an unfair burden on interstate commerce.

Explain McCulloch v. Maryland (1819)

RULE OF LAW: The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government

Explain United States v. Washington (2022)

RULE OF LAW: States cannot regulate the United States directly or discriminate against the Federal Government or those with whom it deals unless Congress consents

Explain Trump v. Vance (2020)

RULE OF LAW: The grand jury in a state criminal prosecution may subpoena a sitting president’s records without a heightened showing of need

What is Federal Preemption?

A legal doctrine that comes from the Supremacy Clause. Federal law overrides (or “preempts”) state law when the two conflict

What are the two types of Preemption?

Express Preemption and Implied Preemption

What are the two types of Implied Preemption?

Field Preemption and Conflict Preemption

What is Express preemption?

Congress clearly says in a law that it intends to override state laws

What is implied preemption?

Congress does not clearly state that it overrides state laws, but it means to

What is field preemption?

The federal government has taken over the whole are of regulation, leaving no room for states to act (even if they’re not contradicting federal law directly)

What is conflict preemption?

It is either (1) impossible to follow both the federal law and state law, or (2) the state law obstructs or frustrates the federal law

Explain Gibbons v. Ogden (1824)

RULE OF LAW: If a state and congress pass conflicting laws, the federal law governs if it is pursuant to congress’s constitutional grant of power

Explain National Pork Producers Council v. Ross (2023)

DECISION: Under the dormant Commerce Clause, a state may generally ban the in-state sale of certain consumer products if the state lacks discriminatory intent

Explain Cantero v. Bank of Am. (2024)

DECISION: New York law did not significantly interfere with the exercise of a national bank power; thus, requiring banks to pay interest would not undermine or frustrate any of Congress’s purposes

What are the Principal Rights of the States?

• Sovereign Immunity

• Anti-Commandeering Doctrine

• The Tenth Amendment and Limited Government

What are the aspects of State sovereign immunity?

• Eleventh Amendment Immunity

• Residual Immunity

What is the Eleventh Amendment?

U.S. states cannot be sued in federal (or state) court by private individuals (or foreign governments) without the state’s consent

What is the current understanding of State sovereign immunity?

• States may not be sued by private parties unless either (1) they consent or (2) both (a) the claim arises from a violation of the 14th Amendment (and maybe 13th, 15th, and 19th) and (b) a federal statute abrogates the state’s immunity

• Consent is narrowly construed and must be clear and ambiguous

• Consent is implied if the state brings the suit or removes a statute suit to federal court

• Congress can sometimes require consent to suits arising from uses of federal funds as a condition of receiving those funds

• Does not bar suits for injunctive or declaratory relief against state officers

What is abrogation?

The taking away (or overriding) of a state’s sovereign immunity, allowing a state to be sued in federal court (must fall under specific provisions of the Constitution)

Explain Alden v. Me (1999)

RULE OF LAW: Congress may not authorize suits against state governments in state courts, even on federal claims, without consent—Sovereign immunity is protection from federal interference, not just interference from the federal courts

Explain Ex Parte Young (1908)

RULE OF LAW: Private actions for declaratory relief or injunction or violation of the constitution or federal law may be brought in federal court against state officials even though states have sovereign immunity

Explain Frew v. Hawkins (2004)

RULE OF LAW: The Eleventh Amendment does not preclude enforcement of a consent decree entered into by a state pursuant to federal law; Ex Parte young permits federal courts to enforce their legitimate orders

What is anti-commandeering and its limits?

• Congress can tell people what to do, and that preempts contrary or inconsistent state commands, but Congress cannot tell states what to do

• However,

  • Congress can prohibit private conduct directly to preempt state law

  • To a point, Congress can condition federal funding on states taking certain actions

  • Congress can directly regulate state action by prohibiting anyone, whether a private person or a state officer, from taking certain actions

  • States can voluntarily cooperate with federal law enforcement

Explain Murphy v. NCAA (2018)

DECISION: The Supreme Court ruled that the Professional and Amateur Sports Protection Act (PASPA) is unconstitutional under the anti-commandeering doctrine, which prohibits Congress from issuing direct orders to state governments

What is the Tenth Amendment?

If the Constitution does not give a power to the federal government, and it does not forbid the States from having it, then that power belongs to the states or the people

What is bicameralism?

The House and the Senate must agree when making and passing legislation

What is presentment?

Any act passed must be presented to the President for signature of veto

Explain INS v. Chada (1983)

RULE OF LAW: For congress to act in a way that has legal effect, it must follow the legislative process in the constitution. This means bicameralism and presentment

Explain Clinton v. City of New York (1998) (Line-Item Veto)

RULE OF LAW: The only procedure for making, amending, or releasing laws is the one set out in the Constitution, bicameralism and presentment

What is the bill of attainder?

A law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial

What is Presidential impounding/impoundment?

• When the President refuses to spend money that Congress has appropriated for a specific purpose

• Neither the Supreme Court nor Congress support the legitimacy for impoundment

Explain Nixon v. Adm’r of General Servs. (1977)

RULE OF LAW: The Presidential Recording and Materials Preservation Act did not violate the doctrines of separation of powers and executive privilege, the Bill of Attainder Clause, of the individual constitutional rights of former President Richard Nixon

What are Ex Post Facto Laws?

The punishment for an action cannot be increased after the fact (has no bearing on Civil remedies)

Explain Smith v. Doe (2003)

RULE OF LAW: A requirement that sex offenders register with law-enforcement authorities is not a retroactive punishment (determined not to be punitive due to legitimate other concerns, such as public safety) by the Ex Post Facto Clause

What is the Elastic Clause (or Necessary and Proper)?

• “The government which has a right to do an act, and has imposed on it, the duty of performing the act, must, according to the dictates of reason, be allowed to select the means”

• “The Congress shall have Power . . . to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”

Explain McCulloch v. Maryland (1819)

RULE OF LAW: The Constitution specifically delegates to Congress the power to tax and spend for the general welfare, and to make such other laws as it deems necessary and proper to carry out this enumerated power

Explain NFIB v. Sebelius (2012)

What is the Doctrine of Constitutional Avoidance?

Essentially the idea that if a case can be decided without ruling on a constitutional issue, the court should avoid deciding that constitutional issue

What is the Commerce Clause?

“The Congress shall have the power . . . to regulate commerce with foreign nations, and among the several states, and with Indian tribes”—This is the major source of Federal Power

What is commerce?

Following textual and historical analyses, “Commerce” is broadly defined as intercourse

Explain Gibbons v. Ogden (1824)

RULE OF LAW: Congress’s constitutional grant of power to regulate interstate commerce broadly

What are the Powers to Regulate?

Congress has full and broad authority to regulate interstate commerce, limited by what the Constitution explicitly restricts (predominately from the idea of limited government)

What is the Lochner era?

• From roughly 1897-1937, an era where the Supreme Court struck down many laws regulating labor and business by interpreting the Constitution to protect economic liberties—this caused a strict and narrow interpretation of the Commerce Clause

• Characteristic suspicion of regulation and unwillingness to let Congress regulate business under the “pretext” of exercising some other power

Explain U.S. v. Darby (1941)

RULE OF LAW: Congress may regulate the labor standards involved in the manufacture of goods for interstate and may exclude from interstate commerce and goods produced under substandard labor conditions (a change from previous rulings, as it is indirect regulation to have labor standards through the Commerce Clause rather than direct standards)

Explain Wickard v. Filburn (1942)

RULE OF LAW: Congress may regulate local activity if that activity exerts a substantial economic effect on interstate commerce

What is Wickard Aggregation?

A legal principle that states small, individual actions—when aggregated across many people—can be regulated by Congress under the Commerce Clause if that action would have a substantial effect on interstate commerce. Essentially, if many people doing the same thing might influence interstate commerce, Congress may step in and regulate it. The modern focus of this rule is more on production then demand.

Explain Heart of Atlanta Motel v. United States (1964)

RULE OF LAW: Congress may enact regulations that prevent racially discriminatory policies in hotel accommodations because of the negative effects of those policies on interstate commerce

Explain United States v. Lopez (1955)

RULE OF LAW: Congress may not, pursuant to its Commerce Clause, pass a law that prohibits the possession of a gun near a school; there needs to be some outer boundary of commerce as to keep government limited

What is the Modern Commerce Clause (derived from United States v. Lopez (1955))

1. Congress may regulate the use and channels of interstate commerce

2. Congress is empowered to regulate and protect the instrumentalities of Interstate commerce, or persons or things in Interstate Commerce, even though the threat may come only from intrastate activities

3. Congress’s commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e. those activities that substantially affect interstate commerce

What are the Taxing and Spending Powers?

“The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposes, and Excises shall be uniform throughout the United States.”

Explain South Dakota v. Dole (1987)

RULE OF LAW: The receipt of federal funds may be conditional if the exercise of the spending power is for the general welfare, the conditions are unambiguous, the conditions are related to a federal interest in a particular national project or program, and the conditions do not violate any other constitutional provisions such as the Tenth Amendment

What are the Constitutional restrictions on spending?

• The exercise of the spending power must be in pursuit of “the general welfare,” with significant judicial deference to Congress’s view

• If Congress desires to condition the States’ receipt of federal funds, it must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation

• Conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs

• Other constitutional provisions may provide an independent bar to the conditional grant of federal funds

What are indirect means to illegitimate ends?

Congress cannot use federal money to encourage or pressure States to do something that would be unconstitutional on its own

What are unconstitutional conditions waivers?

There are (somewhat nebulous) limits on Congress conditioning federal funding on the recipient giving up a constitutional right

What are the treaty and foreign commerce powers granted to Congress?

• To regulate Commerce with foreign Nations

• To declare War, grant Letters of Marque and Reprisal

• To raise and support Armies . . . To provide and maintain a Navy . . . and to make Rule for the Government and Regulation of the land and naval forces

• To provide for calling forth the Militia . . . and for organizing, arming, and disciplining the Militia

• To define and punish Piracies and felonies committed on the high seas and offenses against the law of Naturalization

• To lay and collect Taxes, Duties, Imposts and Excises

• The Senate may approve ambassadors

What are the treaty and foreign commerce powers granted to the President?

• The President shall be the Commander in Chief of the army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

• Shall receive Ambassadors and other public Ministers

• Shall have power, by and with the Advice and Consent of the Senate to make treaties and appoint Ambassadors

Explain a Treaties overview

• 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

• The rationale for the President holding this power is that it is likely a more productive grant of power—The President gets to form the treaty for diplomacy and the senate may advise and consent to the treaty for oversight

• Treaty topics are not limited and the scope (such as issues of only permitting international issues versus domestic issues) is a hotly contested issue

• Historically, senate approval had been used to terminate treaties, but as of the 20th century, the President has been unilaterally terminating—The Supreme Court has not had the occasion to settle this issue

What are the three problems with treaties?

• The dual-nature problem

• The termination problem

• The scope problem

What is the Dual-Nature Problem in treaties?

Treaties are both contracts between countries and (often) law within countries. As such, the power to make treaties is the power to make laws

What is the termination problem in treaties?

Historically, treaty termination required the consent of the Senate. Recently, unilateral termination by the President has become the norm

What is the Scope problem in treaties?

There is no explicit limitation on the scope of treaties and the Supreme Court has not had the occasion to find an implied limit, but many scholars think there is a limit

Explain Missouri v. Holland (1920)

RULE OF LAW: A treaty that infringes the rights reserved to the states under the Tenth Amendment to the United States Constitution may nevertheless be considered valid if it is made under the authority of the United States and is thus the supreme law of the land

Explain Reid v. Covert (1956)

RULE OF LAW: No agreement with a foreign nation can confer power on the Congress or on any other branch of Government, which is free from the constraints of the Constitution. (1) The protections of the Bill of Rights apply to civilian US citizens who are criminally prosecuted by the US military abroad; (2) A treaty or executive agreement between the United States and a foreign nation allowing military prosecutions of civilians abroad violates the protections of the Bill of Rights

Explain Zivotofksy v. Kerry (2015)

RULE OF LAW: The Constitution grants the U.S. president the exclusive authority to formally recognize a foreign sovereign through executive power that Congress may not contradict via statute

What are self-executing treaties?

• Some treaties are “self-executing,” meaning that they create rules of law that are directly applied by the U.S. courts

• Most treaties, however, are non-self-executing, these still create internationally binding obligations (The only difference is how they are treated in U.S. Courts)

What are executive agreements?

• Made between foreign countries and the President

• Can dispose of American’s claims against foreign states and people/corporations, and can set conditions to recognition

• Can implicitly preempt state law

• Some are “congressional-executive agreements” (authorized by legislations passed by both houses of Congress)

Explain the President’s Commander and Chief Powers

The Commander in Chef Clause gives the President clear command over military operations once authorized by Congress, and some independent power in emergencies. However, how far this authority goes—and how much Congress can restrict it—is a widely contested Constitutional question in wartime and national security contexts

Explain Congress’s Power to Declare War

Congress holds the exclusive power to declare war, but Presidents have increasingly used military force independently, often under the guise of self-defense, statutory authority, or limited engagements. The constitutional limits on presidential warmaking remain unsettled, largely left to the political process—the courts typically try to avoid these issues

Compare powers the war powers of Congress and the President

Congress can

• Declare war, grant Letters of Marque and reprisal

• Raise and support Armies . . . provide and maintain a Navy . . . and make rule for the Government and Regulation of the land and naval forces

• Provide for calling forth the Militia . . . and for organizing, arming, and disciplining the Militia

The President

• Shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

Explain the disagreement between the Legislative and Executive Branch on War Powers

There is an ongoing constitutional struggle between Congress and the President over who controls military force initiation. While Congress claims the exclusive right to initiate war, the executive frequently acts on a broader interpretation of presidential power—the courts largely avoid the struggle

Explain the Power to Declare War

• The exclusive power to formally declare war belongs to Congress

• As likely does the exclusive power to start hostilities with other countries

• Debatably Congress has the exclusive power to use force except for national force

• The Executive Branch believes there are lots of military deployments that are not “war in. the constitutional sense”—such as Authorizations for the Use of Military Force

Explain the Commander in Chief Clause

• The exclusive power to command forces and direct the conduct of campaign

• Debatably prohibits Congress from limiting the means the President can use in carrying out military operations

• Does not allow seizing American’s property or disregarding American’s rights except (potentially) on the battlefield

Explain Use of Military Force

While the Constitution empowers Congress to declare war, Congress now primarily uses Authorizations for the Use of Military Force (AUMFs) to authorize military action, reflecting changes in international norms and domestic political strategy

Explain Youngstown Sheet & Tube Co. v. Sawyer (1952)

RULE OF LAW: The president of the United States may not engage in lawmaking activity absent an express authorization from Congress or the text of the Constitution; the Founders of the Nation entrusted the lawmaking power to the Congress alone in both good and bad times

What is the Youngstown framework (from the concurrence)

When the President acts

1. Pursuant to an express or implied authorization of Congress, his authority is at its maximum

2. In absence of either a congressional grant or denial of authority, he can only rely upon his own independent, powers but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain . . . any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law

3. Against “the expressed or implied will of Congress, his power is at its lowest ebb . . . a claim to a power at once so conclusive and preclusive must be scrutinized with caution

What is the War Powers Resolution of 1973?

• Requires the President to notify Congress within 48 hours of using force abroad

• Prohibits deployments of more than 60 days without AUMF from Congress

• Every President since it was passed has maintained that it is unconstitutional, but have still “followed” it—the courts have not decided it

Explain United States v. Curtis-Wright Export Corp (1936)

RULE OF LAW: An otherwise unconstitutional delegation of legislative power to the executive may nevertheless be sustained on the ground that its exclusive goal is to provide relief in a foreign conflict—federal foreign affair powers have been broad an unstructured for a long time (comparatively to domestic affairs)

Explain Hamdi v. Rumsfeld (2004)

RULE OF LAW: A United States citizen held in the United States as an enemy combatant has the due-process right to a meaningful opportunity to challenge the factual basis for his detention before a neutral decision-maker

What is congressional delegation?

Congress can “perform its function by . . . laying down policies and establishing standards” while letting agencies: (1) make subordinate rules with prescribed limits” and (2) “determine facts to which the policy as declared by the legislature is to apply”

What is Legislative Power and its Limites

Congress has exclusive and limited lawmaking power. While courts have allowed flexible interpretations and broad delegations, the principle of legislative accountability and constitutional boundaries remain fundamental

There are three major features of Congressional Power:

1. Bicameralism

2. Limited and Enumerated Powers

3. Nondelegation Doctrine

   • Congress cannot delate its lawmaking power to the President or the courts

   • For any form of delegation, Congress must follow a specific structure

Explain Mistretta v. United States (1989)

RULE OF LAW: Congress may delegate authority to set sentencing guidelines to a judicial commission, provided that it gives an intelligible principle to guide the commission and does not aggrandize the judicial branch at the expense of another branch