the george washington fall semester 2016 university law...

The George Washington Fall Semester 2016University Law School

Syllabus For

CONSTITUTIONAL LAW I

(Course No. 6214-22; 3 credits)

Professor Gregory E. Maggs

Content of this Course:

Constitutional Law I concerns the structure of thegovernment under the U.S. Constitution. The course covers thesetopics: judicial review; federalism-based limitations on statepowers; selected federal regulatory powers (including the powersto regulate commerce, to tax, and to spend money, and to use thewar and treaty powers for regulatory purposes); state immunityfrom federal regulation; the President's powers; the separationof powers; selected limitations on legislative power (includingthe prohibitions against bills of attainder, state law impairmentof contracts, and the taking of property without justcompensation); and the state action doctrine.

Most law students take Constitutional Law II (Course No.6380) as an elective after their first year. Constitutional LawII addresses individual rights and liberties. It typicallycovers the privileges and immunities of national citizenship, theguarantees of due process and equal protection, the freedom ofspeech and religion, and so forth. The Law School also offersseveral advanced courses (described in the Law School Bulletin)that concern other constitutional law topics.

Learning Outcomes (ABA Accreditation Standards 301 & 302)

Syllabus Appendix C identifies the expected "learningoutcomes" for this course.

Class Schedule:

The course meets on Wednesdays from 6:00 p.m. to 7:25 p.m.and Thursdays from 7:35 p.m. to 9:00 p.m. It does not meet onNovember 23 and 24 because of the Thanksgiving holiday. The lastday of class is December 1.

Office Hours and other Contact Information:

My office is in Stuart Hall room 416. I will post my officehours on the portal. You may also contact me at (202) 994-6031or [email protected].

At my website (http://docs.law.gwu.edu/facweb/gmaggs) and onthe portal, you can obtain copies of this syllabus and copies ofmy past examinations and their grading guides.

Required Book:

We will use this book: Maggs & Smith, Constitutional Law: AContemporary Approach (3d ed. 2015) (West Academic Publishing)(ISBN 978628103083).

Final Examination:

This course will have an open-book, three-hour examinationon Thursday, December 15 at 6:30 p.m. In completing theexamination, you may use any written materials that you havebrought with you.

Class Participation:

Please come to class prepared to discuss the assignedmaterial. Class participation does not affect your final grade.

Recording of Classes:

This course will follow the Law School's "Class RecordingPolicy," which is available at the Student Affairs Officewebsite. This policy permits students to request the recordingof classes when they will be absent for religious reasons, familyemergencies, and certain other causes. Please direct requestsfor recording under this policy to the Student Affairs Office.

Reading Assignments:

At the end of each class, I will tell you how far to readfor the next class. Please study carefully all of theconstitutional provisions cited in the reading. The text of theConstitution appears in the textbook on pages 1389-1405. You donot have to read the notes following the cases unless they arespecifically assigned. You also should consult the SyllabusAppendix A, which summarizes the basic principles of the cases.

I. JUDICIAL REVIEW AND ITS LIMITS

A. JUDICIAL REVIEW

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Text, pp. 1-13 [for background]

Text, pp. 43-46

Marbury v. Madison, pp. 46-53

Points for Discussion (c)-(e), pp. 54-55

B. OBSTACLES TO JUDICIAL REVIEW

1. Political Question Doctrine

Text, pp. 67-68

Nixon v. United States, pp. 72-77

Points for Discussion (a)-(c), pp. 77-78

2. Case or Controversy Requirement

Text, p. 78

Muskrat v. United States, pp. 78-80

Points for Discussion (a) & (b), p. 81

3. Ripeness and Mootness Doctrines

Points for Discussion (d), pp. 81-82 [Anderson v. Green; U.S. Parole v. Geraghty]

4. Requirement of Standing

Text, pp. 82-83

Hypothetical, p. 97

Lujan v. Defenders of Wildlife, pp. 90-96

Point for Discussion (a), p. 96

5. Statutory Limitations on Jurisdiction

Text, p. 98

Ex Parte McCardle, pp. 98-100

Points for Discussion (a) & (b), pp. 100-101

Syllabus Appendix A, Part I [for review]

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II. INTRODUCTION TO GOVERNMENTAL POWERS UNDER THE CONSTITUTION

Text, pp. 107-110

McCulloch v. Maryland, pp. 110-120

Points for Discussion (c)-(e), pp. 120-122

Syllabus Appendix A, Part II [for review]

III. FEDERALISM-BASED LIMITATIONS ON STATE POWER

A. PREEMPTION

Text, pp. 275-277

Silkwood v. Kerr-McGee Corp., pp. 277-282


Preemption Problem, pp. 283-284

B. THE "DORMANT" OR "NEGATIVE" COMMERCE CLAUSE DOCTRINE

1. Introduction

Text, pp. 283-286

Gibbons v. Ogden, pp. 130 (1st para.); 286-289


2. When a Uniform National Standard is Needed

Text, p. 290

Cooley v. Board of Wardens, pp. 290-292

Wabash, St. L. & P. Ry. v. Illinois, pp. 293-294

Points for Discussion (a)-(c), p. 295

3. Discrimination Against Interstate Commerce

Text, pp. 295-296

Dean Milk v. City of Madison, pp. 296-298

Points for Discussion (a)-(e), pp. 298-299

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Hughes v. Oklahoma, pp. 299-301


4. Excessive Burdens on Interstate Commerce

Text, p. 302

South Carolina v. Barnwell Brothers, pp. 303-306


Southern Pacific v. Arizona, pp. 306-309

Points for Discussion (a)-(d), pp. 309-310

5. Criticism of the Dormant Commerce Clause Doctrine

Camps Newfound v. Town of Harrison, pp. 318-322

Point for Discussion (b), p. 322

6. Congressional Consent

Text, p. 333

Prudential Ins. Co. v. Benjamin, pp. 333-336

Points for Discussion (a) & (c), pp. 336-337

C. PRIVILEGES AND IMMUNITIES CLAUSE

Text, pp. 339-341

Baldwin v. Fish & Game Commission, pp. 341-344


Syllabus Appendix A, Part III [for review]

IV. SELECTED FEDERAL LEGISLATIVE POWERS AND THEIR LIMITS

A. MODERN COMMERCE CLAUSE DOCTRINE

Text, pp. 128-129

Gibbons v. Ogden, pp. 130-133


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Text, pp. 134, 145-146

Carter v. Carter Coal, pp. 146-148


Text, pp. 148-149

United States v. Darby, pp. 152-154

Point for Discussion (c), p. 155

Wickard v. Filburn, pp. 155-157

Points for Discussion (a)-(b), p. 157

Text, pp. 157-158

Heart of Atlanta Motel v. U.S., pp. 158-159

Katzenbach v. McClung, pp. 159-162

Point for Discussion (a)-(c), pp. 162-163

Text, p. 163

United States v. Lopez, pp. 164-172


Gonzales v. Raich, pp. 179-186

Point for Discussion (b), pp. 186

NFIB v. Sebelius, pp. 187-199


B. TAXING POWERS

Text, pp. 199-200

Child Labor Tax Case, pp. 200-202


United States v. Kahriger, pp. 203-205



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Points for Discussion (a)-(b), pp. 213-214

C. SPENDING POWERS

Text, p. 214

United States v. Butler, pp. 215-217

Points for Discussion (a) & (b), pp. 217-219 [Charles C. Seward Machine v. Davis;

Helvering v. Davis]

South Dakota v. Dole, pp. 219-222

Point for Discussion (a) & (b), p. 222



D. REGULATION UNDER THE WAR AND TREATY POWERS

Text, p. 232

Woods v. Cloyd W. Miller Co., pp. 232-234

Missouri v. Holland, pp. 234-236


E. STATE GOVERNMENTAL IMMUNITY FROM FEDERAL REGULATION

Text, pp. 237-238

McCulloch v. Maryland part "2.", pp. 117-120

Garcia v. San Antonio Metro., pp. 240-244


New York v. United States, pp. 244-249


Printz v. United States, pp. 250-257


Text, p. 259

Alden v. Maine, pp. 259-267

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Point for Discussion (d), pp. 268-269

Syllabus Appendix A, Part IV [for review]

V. THE PRESIDENT'S POWERS

A. DOMESTIC AFFAIRS

Text, pp. 361-364

Youngstown Sheet & Tube v. Sawyer, pp. 364-374


B. FOREIGN AFFAIRS

Text, p. 375

United States v. Curtiss-Wright, pp. 381-385


Text, pp. 386-387 [Whitney v. Robertson]

Goldwater v. Carter, pp. 387-390


C. EXECUTIVE PRIVILEGE

Text, pp. 407-408

United States v. Nixon, pp. 408-413


Syllabus Appendix A, Part V [for review]

VI. SEPARATION OF POWERS

A. UNORTHODOX ATTEMPTS TO EXERCISE LEGISLATIVE POWER

Text, pp. 431-434, 439-440

INS v. Chadha, pp. 441-449


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Text, p. 450

Clinton v. City of New York, pp. 450-457

Points for Discussion (a)-(c), pp. 457

B. UNORTHODOX ATTEMPTS TO EXERCISE EXECUTIVE POWER

Text, pp. 457-459, 466

Bowsher v. Synar, pp. 466-474

Points for Discussion (a) & (d), pp. 474-475

Text, p. 475

Morrison v. Olson, pp. 476-486


C. STATE ATTEMPTS TO REGULATE THE HOUSE AND SENATE

Text, pp. 348-349

U.S. Term Limits, Inc. v. Thornton, pp. 349-357


Syllabus Appendix A, Part VI [for review]

VII. LEGISLATIVE POWER AND SELECTED INDIVIDUAL RIGHTS

A. BILLS OF ATTAINDER

Federalist No. 44 (excerpt), Syllabus Appendix B

Text, pp. 498-499

Nixon v. Admin. of General Services, pp. 499-503


B. IMPAIRMENT OF CONTRACTS BY STATE LAWS

Text, pp. 1315-1316

Home Building & Loan v. Blaisdell, pp. 1316-1319


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Allied Structural Steel v. Spannaus, pp. 1320-1323


C. GOVERNMENT TAKINGS OF PRIVATE PROPERTY

1. Physical or Possessory Takings

Text, p. 1324

United States v. Causby, pp. 1325-1327


Text, p. 1328 [Loretto v. Teleprompter Manhattan]

Yee v. City of Escondido, pp. 1329-1331


2. Public Use Requirement

Text, p. 1342

Kelo v. City of New London, pp. 1342-1347

Points for Discussion (a)-(d), p. 1348

3. Regulatory Takings

Text, pp. 1331-1332 [Pennsylvania Coal Co. v. Mahon]

Andrus v. Allard, pp. 1335-1336


Lucas v. S.C. Coastal Council, pp. 1337-1341


Syllabus Appendix A, Part VII [for review]

VIII. STATE ACTION DOCTRINE

A. GENERAL REQUIREMENT OF STATE ACTION

Text, pp. 1351-1352

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Text, p. 1353

The Civil Rights Cases, pp. 1354-1359


Note on Federal Civil Rights Legislation, Syllabus Appendix B

B. PUBLIC FUNCTION EXCEPTION

Text, pp. 1360-1361

Marsh v. Alabama, pp. 1361-1363


Text, p. 1364

Hudgens v. NLRB, pp. 1365-1367

Points for Discussion (a)-(b), pp. 1367-1368

C. JUDICIAL ENFORCEMENT EXCEPTION

Text, p. 1368

Shelley v. Kraemer, pp. 1368-1371


D. JOINT PARTICIPATION EXCEPTION

Text, pp. 1372-1373 [Lugar v. Edmondson Oil Co.]

Burton v. Wilmington Parking Auth., pp. 1373-1376


Edmonson v. Leesville Concrete, pp. 1377-1380


Point for Discussion (b), pp. 1385-1386 [Dennis v. Sparks]

NCAA v. Tarkanian, pp. 1381-1385

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Syllabus Appendix A, Part VIII [for review]

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APPENDIX A: SUMMARY OF PRINCIPLES AND DOCTRINES

This appendix briefly summarizes the constitutional lawprinciples and doctrines established by the cases in the reading. While no concise statement can capture all the implications of aSupreme Court decision, the most important ideas should notremain a mystery. We will elaborate in class on these points.

I. JUDICIAL REVIEW AND ITS LIMITS

Although the Supremacy Clause makes clear that courts maynot enforce unconstitutional state laws, no provision in theConstitution expressly empowers judges to review theconstitutionality of federal legislation or federal executiveactions. The Supreme Court, however, has held this power ofjudicial review to be implicit in the Constitution. Marbury v.Madison (1803) [p. 46].

A federal court, however, cannot exercise judicial review ofthe constitutionality of legislation or executive action if:

(1) Article III of the Constitution does not permit thefederal court to exercise jurisdiction (see below),Marbury v. Madison (1803) [p. 46];

(2) the case involves a "non-justiciable politicalquestion" (see below), Nixon v. United States (1993)[p. 72];

(3) there is no genuine case or controversy (see below),Muskrat v. United States (1911) [p. 78];

(4) the case is not yet ripe (see below), Anderson v. Green(1995) [pp. 81-82], or it has become moot (see below),United States Parole Comm'n v. Geraghty (1980) [p. 82];

(5) the litigant seeking judicial review lacks standing(see below), Lujan v. Defenders of Wildlife [p. 90]; or

(6) Congress validly deprives the court of jurisdiction bystatute (see below), Ex Parte McCardle (1869) [p. 98].

Article III expressly empowers the Supreme Court to exerciseoriginal (as opposed to appellate) jurisdiction only over casesaffecting ambassadors, other public ministers and consuls, andthose in which a state is a party. Congress may not grant theSupreme Court original jurisdiction over mandamus or otheractions that do not fall within these categories. Marbury v.Madison (1803) [p. 46].

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A non-justiciable political question is an issue that theConstitution commits to a branch of the government other than thejudiciary. In determining whether an issue is a non-justiciablepolitical question, courts consider whether the text of theConstitution directs Congress or the President to decide theissue, whether there are judicially manageable standards forresolving the issue, and other factors. Nixon v. United States(1993) [p. 72].

Article III permits the federal courts to exercisejurisdiction only to decide cases and controversies. Prior toactual litigation, the courts may not give Congress or anyoneelse advisory opinions about the constitutionality oflegislation. Congress may not overcome this prohibition bydeclaring the United States to be a party in lawsuit in which itdoes not truly have an interest. Muskrat v. United States (1911)[p. 78].

A legal dispute is not ripe if it has not yet developed intoan actual controversy, has not yet caused injury, or is otherwiseasserted prematurely. Anderson v. Green (1995) [pp. 81-82]. Acontroversy is moot if the parties no longer have any meaningfuland concrete stake in its resolution. United States ParoleComm’n v. Geraghty (1980) [p. 82].

To have standing under Article III, the plaintiff mustproperly allege: (1) that the plaintiff has suffered an injury infact; (2) that the injury is fairly traceable to the challengedconduct; and (3) that the injury is redressable by a favorabledecision. Lujan v. Defenders of Wildlife (1992) [p. 90]. Theinjury must be concrete and particularized, and actual orimminent, rather than speculative or conjectural. Id. Congresslacks power to authorize suits by persons who do not satisfy thetest for Article III standing. Id.

Article III expressly authorizes Congress to createexceptions to the Supreme Court's appellate jurisdiction. Congress in some instances has used this power to preventjudicial review by the Supreme Court. The scope of Congress'spower to create exceptions for this purpose, however, remainsundecided. Ex Parte McCardle (1869) [p. 98].

II. GOVERNMENTAL POWERS UNDER THE CONSTITUTION

The "doctrine of limited powers" says that Congress only hasthe powers granted to it by the Constitution. Amend. 10. The"doctrine of implied powers" says that Congress has not onlyexpressly enumerated powers, but also implied powers through the

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Necessary and Proper Clause, Article I, § 8, cl. 18. TheNecessary and Proper Clause empowers Congress to enact a law ifthe law constitutes a means that is rationally related to theimplementation of a constitutionally enumerated power. Or asChief Justice Marshall famously put it: "Let the end belegitimate, let it be within the scope of the constitution, andall means which are appropriate, which are plainly adapted tothat end, which are not prohibited, but consist with the letterand spirit of the constitution, are constitutional." McCullochv. Maryland (1819) [p. 110].

III. FEDERALISM-BASED LIMITATIONS ON STATE POWER

Under the Supremacy Clause, federal law can preempt (i.e.,render null) a state law in two ways:

(1) Field Preemption: "If Congress evidences an intent tooccupy a given field, any state law falling within thatfield is preempted." Silkwood v. Kerr-McKee (1984) [p.277]; and

(2) Conflict Preemption: "If Congress has not entirelydisplaced state regulation over the matter in question,state law is still preempted to the extent it actuallyconflicts with federal law . . . ." Id.

The Dormant Commerce Clause Doctrine and the SupremacyClause say that a state law affecting interstate commerce isinvalid if:

(1) the state law is pre-empted by a federal statute (seeabove), Gibbons v. Ogden (1824) [p. 286];

(2) the state law concerns a subject for which nationaluniformity is necessary (see below), Cooley v. Board ofWardens (1851) [p. 290], Wabash, St. L. & P. Ry. Co. v.Illinois (1886) [p. 293].

(3) the state law treats interstate commerce differentlyfrom intrastate commerce, either intentionally or inpractical effect, when there is a reasonable, non-discriminatory, alternative way of furthering thestate's legitimate interests (see below), Dean Milk v.City of Madison (1951) [p. 296], Hughes v. Oklahoma(1979) [p. 299], Camps Newfound v. Town of Harrison(1997) [p. 318]; or

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(3) the state law imposes a burden on interstate commercethat is excessive in relation to legitimate localinterests (see below), South Carolina Department ofTransportation v. Barnwell Brothers (1938) [p. 303],Southern Pacific v. Arizona (1945) [p. 306].

A uniform national standard may be necessary when allowingmultiple states to regulate a subject could result in conflictingregulations with which compliance would be impossible. Wabash,St. L. & P. Ry. Co. v. Illinois (1886) [p. 293].

For the purposes of the Dormant Commerce Clause Doctrine,legitimate local interests include protecting health and safetyand conserving natural resources but do not include protectinglocal businesses from competition. Dean Milk v. City of Madison(1951) [p. 296], Hughes v. Oklahoma (1979) [p. 299], SouthCarolina Department of Transportation v. Barnwell Brothers (1938)[p. 303], Southern Pacific v. Arizona (1945) [p. 306].

Congress may authorize the states to pass legislation thatotherwise would violate the Dormant Commerce Clause Doctrine. Prudential Ins. Co. v. Benjamin (1946) [p. 333].

The Privileges and Immunities Clause prohibitsdiscrimination against out of state residents or citizens (butnot corporations or aliens) if the discrimination mightjeopardize interstate harmony, unless the discrimination isnecessary to promote a substantial state interest. Baldwin v.Fish & Game Commission (1978) [p. 341].

IV. SELECTED FEDERAL LEGISLATIVE POWERS AND THEIR LIMITS

The Commerce Clause empowers Congress to enact legislationregulating:

(1) interstate commerce, and its channels andinstrumentalities, Gibbons v. Ogden (1824) [p. 130];and

(2) intrastate economic activities, provided that Congressrationally could conclude that the activities mighthave a substantial effect on interstate commerce,either by themselves or through their repetitionnationwide, United States v. Darby (1941) [p. 152],Wickard v. Filburn (1942) [p. 155], Heart of AtlantaMotel v. United States (1964) [p. 158], Katzenbach v.McClung (1964) [p. 159], United States v. Lopez (1995)[p. 164], Gonzales v. Raich (2005) [p. 179].

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Congress's power to regulate commerce among the states isplenary. Gibbons v. Ogden (1824) [p. 130]. In reviewinglegislation enacted under the Commerce Clause, courts will notconsider:

(1) whether the actual purpose of the legislation is toregulate interstate commerce, United States v. Darby(1941) [p. 152]; or

(2) the wisdom, workability, or fairness of thelegislation, Wickard v. Filburn (1942) [p. 155].

Congress's plenary power to regulate commerce, however, doesnot enable Congress to create commerce by compeling individualsto purchase an unwanted product. NFIB v. Sebelius (2012) [p.187].

The "penalty doctrine" says that Congress may not create taxpenalties which have the primary purpose, not of raising revenue,but instead of regulating intrastate activities that Congresscould not regulate under the Commerce Clause. (The doctrine doesnot prevent Congress from imposing taxes designed to regulatesubjects that Congress may reach under the Commerce Clause.) Child Labor Tax Case (Bailey v. Drexel Furniture) (1922)[p. 200].

The more recent doctrine of "objective constitutionality"greatly limits the penalty doctrine by requiring courts to upholdtax laws unless they contain provisions "extraneous to any taxneed." Under this doctrine, so long as tax laws actually raiserevenue, courts cannot invalidate them merely because Congressintended them to have a regulatory effect. United States v.Kahriger (1953) [p. 203]; NFIB v. Sebelius (2012) [p. 205].

"Direct taxes" must be apportioned so that each state paysin proportion to its population. U.S. Const. art. I, § 2, cl. 3;id. § 9, cl. 4. Direct taxes include taxes on the ownership ofland or personal property. But a tax on "going without healthinsurance" is not a direct tax. NFIB v. Sebelius (2012) [p.205].

The General Welfare Clause implicitly grants Congress powerto spend money to promote the general welfare, so long as thespending does not violate any other constitutional limitation. Congress, therefore, may appropriate funds for purposes unrelatedto the specific powers enumerated in article I, section 8. United States v. Butler (1936) [p. 215].

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The courts generally will defer to Congress's determinationof which expenditures promote the general welfare, "unless thechoice is clearly wrong, a display of arbitrary power, not anexercise of judgment." Helvering v. Davis (1937) [p. 218]. Congress may condition a rebate of a tax (i.e., a partial refundof a tax that has been paid) on upon conduct of the taxpayer,even if the purpose of the rebate is to motivate or tempt thetaxpayer to engage in the conduct. Charles C. Steward MachineCo. v. Davis (1937) [p. 218].

Congress may use its spending power under the GeneralWelfare Clause to induce states to enact laws that Congressitself could not pass, provided that:

(1) Congress is seeking to further the general welfare;

(2) Congress expresses any conditions on the spendingunambiguously so that states may exercise their optionsknowingly;

(3) the conditions imposed on receipt of federal funds arerelated to a federal interest in particular nationalprojects or programs;

(4) there is no independent constitutional bar preventingthe state's enactment of the laws; and

(5) the financial inducement offered to the states does not"pass the point at which pressure becomes compulsion."

South Dakota v. Dole (1987) [p. 219]. With respect to element(5) of this test, a threatened loss of over 10 percent of aState's overall budget is an example of "economic dragooning thatleaves the States with no real option but to acquiesce." NFIB v.Sebelius (2012) [p. 223].

The War Power allows Congress to enact legislation necessaryand proper for remedying the "evils" which have arisen from awar. This power may extend beyond the time at which activehostilities end. Woods v. Cloyd W. Miller Co. (1948) [p. 232].

Congress may enact legislation necessary and proper forimplementing a valid treaty even if Congress could not pass thelegislation in the absence of the treaty. Although a treatycannot "contravene any prohibitory words" in the Constitution(e.g., violate the Bill of Rights), a treaty can address at leastsome matters that are beyond Congress's enumerated legislativepowers. Missouri v. Holland (1920) [p. 234].

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The general rules with respect to intergovernmental immunityare as follows:

(1) The federal government is immune from state regulationand taxation. McCulloch v. Maryland (1819) [p. 110].

(2) State governments and governmental agencies are notimmune from federal commerce regulations that applyequally to non-governmental entities. Garcia v. SanAntonio Metro. Transit Authority (1985) [p. 240].

(3) Congress cannot compel the states to pass legislationor administer federal programs. New York v. UnitedStates (1992) [p. 244]; Printz v. United States (1997)[p. 250]

(4) Congress may induce states to pass legislation by (a)threatening to withhold federal funds if they do not(see below); or (b) offering states the choice ofeither regulating according to federal standards orhaving state law pre-empted by federal regulation. NewYork v. United States (1992) [p. 244].

(5) States have sovereign immunity based on "fundamentalpostulates implicit in the constitutional design." States must follow the Constitution and federal law,but states are immune from lawsuits absent theirconsent. Although the Eleventh Amendment refers to theStates' immunity from suits "commenced or prosecutedagainst one of the United States by Citizens of anotherState, or by Citizens or Subjects of any ForeignState," the Eleventh Amendment is not the source ofstate sovereign immunity and does not define its scope. Alden v. Maine (1999) [p. 259]

V. THE PRESIDENT'S POWERS

With respect to domestic affairs, the Supreme Court has notadopted the view that the President has extra-constitutionalpowers. Instead, the President may exercise only those powersgranted expressly or implicitly by a statute or by theConstitution. Youngstown Sheet & Tube v. Sawyer (1952) [p. 364]. Accordingly, the President does not have the power to seizeprivate property outside the theater of war except pursuant to astatute. Id.

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The President has a duty to execute the laws faithfully, andthis duty requires the President to obey the legislative choicesmade by Congress. Id.

The theory of the "extra-constitutional origin of theforeign affairs power" says that the United States may exercisenot only the powers that the Constitution expressly grants, butalso other foreign affairs powers enjoyed by all sovereigns. United States v. Curtiss-Wright Export (1936) [p. 381].

The Non-Delegation Doctrine limits the discretion thatCongress may give the President in enforcing statutes. The needsof diplomacy require that Congress be allowed to give thePresident more discretion and freedom from statutory restrictionin international matters than is authorized in domestic affairs. Id.

As a practical matter, the President can exercise someforeign affairs powers not expressly granted in the Constitutionbecause the federal courts will decline to review the President'sactions under the political question doctrine or other doctrines. For example, the Constitution grants Congress the power torescind treaty obligations by statute, Whitney v. Robertson(1888) [p. 386]; the Constitution does not say whether thePresident alone also has this power, but the Supreme Court hasdeclined to consider a challenge to a President's attempt torescind treaty obligations, Goldwater v. Carter (1979) [p. 387].

The Executive Privilege doctrine, which is said to beconstitutionally implied by the need for the effective dischargeof executive power, says that the President has:

(1) an absolute right to keep confidential anycommunications with executive advisors regarding"military, diplomatic, or sensitive national securitysecrets"; and

(2) a presumptive right to keep confidential anycommunications with executive advisors on othersubjects, but this presumptive right must "yield to thedemonstrated, specific need for evidence in a pendingcriminal trial."

United States v. Nixon (1974) [p. 408].

VI. THE SEPARATION OF POWERS

Congress and the President may exercise legislative power

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only by enacting laws pursuant to the Bicameralism andPresentment requirements in article I, § 7. INS v. Chadha (1983)[p. 441]; Clinton v. City of New York [p. 450]. Legislative powerconsists of actions that have "the purpose and effect of alteringthe legal rights, duties, and relations of persons." INS v.Chadha (1983) [p. 441].

The following principles govern the removal from office of afederal official who exercises executive power:

(1) Congress may remove the official under the proceduresfor impeachment and trial in Art. I, § 2, cl. 5 & 3,cls. 6 & 7.

(2) Congress may not give itself any other role in removingthe official. Bowsher v. Synar (1986) [p. 466].

(3) Congress may not entirely prevent the President, actingalone or through a subordinate, from removing theofficial. Id. (interpreting Myers v. United States(1925)).

(4) Congress may condition the President's power to removethe official on a showing of cause for removal (e.g.,neglect, disability, etc.), id. (interpretingHumphrey's Executor v. United States (1935)), unlessthe "standard for removal unduly trammels on executiveauthority," Morrison v. Olson (1988) [p. 476].

The Appointments Clause permits Congress to vest in thecourts the power of appointing inferior executive officers, suchas prosecutors, and to give the courts some discretion indefining the nature and scope of the appointed officer'sjurisdiction. Morrison v. Olson (1988) [p. 476].

Article III permits federal judges to exercise ministerialfunctions not traditionally limited to the executive branch. Id.

Article I sets forth the only qualifications for members ofCongress, and the states may not attempt to impose additionalqualifications by limiting the ability of candidates to havetheir names appear on general ballots. U.S. Term Limits, Inc. v.Thornton (1995) [p. 349].

VII. LEGISLATIVE POWER AND SELECTED INDIVIDUAL RIGHTS

In determining whether a law is bill of attainder, thecourts will consider precedent and a variety of factors,

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including (1) whether the challenged statute falls within thehistorical meaning of legislative punishment; (2) whether the statute furthers nonpunitive legislative purposes; and (3)whether the legislative record evinces an intent to punish. Nixon v. Admin. of General Services (1977) [p. 499]. A law isnot a bill of attainder merely because it imposes burdens on onlyone person. Id.

The Contracts Clause prohibits the substantial impairmentof existing contracts by state legislatures unless the law isresponding in a limited way to conditions similar to those in Home Building & Loan v. Blaisdell (1934) [p. 1316]. Indetermining whether a law violates the Contracts Clause, courtsconsider various factors, including (1) whether the law isintended to deal with a broad, generalized economic or socialproblem; (2) whether the law operates in an area already subjectto state regulation at the time the affected contractualobligations were undertaken; (3) whether the law effects simply atemporary alteration of contractual relationships; and (4)whether the law applies to everyone making the affected kinds ofcontracts or only a narrow group of persons. Allied StructuralSteel v. Spannaus (1978) [p. 1320]. A state can impair acontract not merely by decreasing, but also by increasing, theduties of one party to the contract. Id.

The Fifth Amendment requires the federal government to payjust compensation when it takes private property. The governmenteffects a possessory or physical taking of private property whenit confiscates the property or requires the property owner tosubmit to a complete or partial physical occupation of theproperty. Loretto v. Teleprompter Manhattan (1982) [p. 1328]. Although the United States has immunity from liability for thetort of nuisance, the Court may deem a direct and immediateinterference with the use and enjoyment of the property to be aphysical occupation requiring compensation. United States v.Causby (1946) [p. 1325]. Rent control legislation is not apossessory taking because it does not require the landlord tosubmit to any physical invasion of the landlord's property(although such legislation could be a regulatory taking). Yee v.City of Escondido (1992) [p. 1329].

The government may take private property for the "publicpurpose" of private economic development. Kelo v. City of NewLondon (2005) [p. 1342].

While private property may be regulated "to a certainextent," if a regulation goes "too far," it is a taking. Pennsylvania Coal Co. v. Mahon [p. 1331]. Laws restricting thesale of property, but not other traditional property rights, are

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seldom takings even if they cause a loss of future profits. Andrus v. Allard (1979) [p. 1335]. A regulation that deprivesthe property owner of all previously permissible economic uses ofland goes too far and is per se a taking. Lucas v. SouthCarolina (1992) [p. 1337].

VIII. STATE ACTION DOCTRINE

The "state action" doctrine recognizes that the Constitutionrestrains the actions of federal, state, and local governmentsand government officials, but generally does not limit theactions of private individuals and corporations. The CivilRights Cases (1883) [p. 1354].

The "public function" exception to the state action doctrinerequires courts to apply constitutional limitations to privateentities when they engage in functions traditionally exclusivelyreserved to the government. Under this doctrine, the Court hasheld that a company town must afford speakers the protection ofthe First Amendment, but that a shopping center does not. Marshv. Alabama (1946) [p. 1361]; Hudgens v. NLRB (1976) [p. 1365].

The "judicial enforcement" exception to the state actiondoctrine says that a court's enforcement of a private agreementmay constitute state action. Accordingly, judicial enforcementof a restrictive covenant that requires an unwilling party todiscriminate on the basis of race violates the FourteenthAmendment. Shelley v. Kraemer (1948) [p. 1368].

The "joint participation" exception to the state actiondoctrine says that a private party may engage in state action in the following situations:

(1) when the private party takes an action and has a closeand interdependent financial relationship with thegovernment, such as a lease in a public building, Burton v. Wilmington Parking Authority (1961)[p. 1373];

(2) when the private party exercises powers under a statuteor other law in circumstances making it fair to saythat the private party is a state actor, Lugar v.Edmondson Oil Co. (1982) [p. 1373]; Edmonson LeesvilleConcrete Co. (1991) [p. 1377]; or

(3) when the government or a government official takes anaction pursuant to a conspiracy with the private party,NCAA v. Tarkanian (1988) [p. 1381]; Dennis v. Sparks(1980) [p. 1385].

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APPENDIX B: SUPPLEMENTARY MATERIALS

Federalist No. 44 (excerpt)

"Bills of attainder, ex post facto laws, and laws impairingthe obligation of contracts, are contrary to the first principlesof the social compact, and to every principle of soundlegislation. The two former are expressly prohibited by thedeclarations prefixed to some of the State constitutions, and allof them are prohibited by the spirit and scope of thesefundamental charters. Our own experience has taught us,nevertheless, that additional fences against these dangers oughtnot to be omitted. Very properly, therefore, have the conventionadded this constitutional bulwark in favor of personal securityand private rights; and I am much deceived if they have not, inso doing, as faithfully consulted the genuine sentiments as theundoubted interests of their constituents. The sober people ofAmerica are weary of the fluctuating policy which has directedthe public councils. They have seen with regret and indignationthat sudden changes and legislative interferences, in casesaffecting personal rights, become jobs in the hands ofenterprising and influential speculators, and snares to themore-industrious and less informed part of the community. Theyhave seen, too, that one legislative interference is but thefirst link of a long chain of repetitions, every subsequentinterference being naturally produced by the effects of thepreceding. They very rightly infer, therefore, that some thoroughreform is wanting, which will banish speculations on publicmeasures, inspire a general prudence and industry, and give aregular course to the business of society." Federalist No. 44(James Madison)

Note on Federal Civil Rights Legislation

The 13th and 14th Amendments provide important civil rightsprotections. The 13th Amendment bans slavery, while the 14thAmendment prohibits any state from denying to any person withinits jurisdiction the "equal protection of the laws." You willlearn more about the 13th and 14th Amendments if you takeConstitutional Law II. We are interested in the 13th and 14thAmendments in Constitutional Law I because they touch upon thedistinction between "state action" (i.e., action by thegovernment or a government official) and "private action" (i.e.,action by individuals and corporations).

Section 2 of the 13th Amendment and section 5 of the 14thAmendment each grant Congress the power to enact legislation toenforce them. An example of legislation passed by Congress usingits power under section 2 of the 13th Amendment is 42 U.S.C.§ 1982. This statute provides:

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APPENDIX B: SUPPLEMENTARY MATERIALS

42 U.S.C. § 1982. Property rights of citizens

All citizens of the United States shall have the same right,in every State and Territory, as is enjoyed by whitecitizens thereof to inherit, purchase, lease, sell, hold,and convey real and personal property.

An example of legislation passed by Congress using its powerunder section 5 of the 14th Amendment is 42 U.S.C. § 1983. Thisstatute provides:

42 U.S.C. § 1983. Civil action for deprivation of rights

Every person who, under color of any statute,ordinance, regulation, custom, or usage, of any Stateor Territory or the District of Columbia, subjects, orcauses to be subjected, any citizen of the UnitedStates or other person within the jurisdiction thereofto the deprivation of any rights, privileges, orimmunities secured by the Constitution and laws, shallbe liable to the party injured in an action at law,suit in equity, or other proper proceeding for redress. . . .

We will see examples of 42 U.S.C. § 1983 in Lugar v. EdmondsonOil Co. [p. 1292], Edmonson v. Leesville Concrete [p. 1297], NCAAv. Tarkanian [p. 1300], and Dennis v. Sparks [p. 1305].

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APPENDIX C: LEARNING OUTCOMES

This appendix identifies the "learning outcomes" for thiscourse in accordance with ABA Accreditation Standards 301 and 302and the Guidance to these Standards.

(a) Knowledge and understanding of substantive and procedurallaw

Upon completing Constitutional I, students should know andunderstand the substantive and procedural law pertaining to thesesubjects:

1. Judicial review of the constitutionality of federal andstate laws

2. Political Question doctrine

3. Case or Controversy requirement

4. Ripeness and Mootness doctrines

5. Requirement of standing

6. Statutory limitations on the Supreme Court’s jurisdiction

7. Preemption of state laws under the Supremacy Clause

8. "Dormant" or "Negative" Commerce Clause doctrine(including the uniform national standard test, thediscrimination test, the excessive burden test, and thecongressional consent exception)

9. Powers of Congress in general

10. Modern Commerce Clause doctrine

11. Taxing powers

12. Spending powers

13. War and Treaty power

14. State governmental immunity from federal regulation

15. President's powers over domestic affairs

16. President's powers over foreign affairs

17. Separation of powers in general

18. Unorthodox attempts to exercise legislative power

19. Unorthodox attempts to exercise executive power

20. State attempts to regulate the House and Senate

21. Bills of Attainder

22. Impairment of contracts by state laws

23. Physical takings of private property

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24. Regulatory takings of private property

25. State Action doctrine

26. Public Function, Judicial Enforcement, and JointParticipation exceptions to the State Action doctrine

(b) Legal analysis and reasoning, legal research,problem-solving, and written and oral communication in thelegal context

When assigned to read a case, students should be able toidentify and discuss the facts, the plaintiff's claim, thedefendant's defense, the remedies sought, the pertinent legalrules, the issue for decision under these rules, the arguments ofthe parties, and the holding and reasoning of the court;apply the holding to hypothetical variations of the facts;discuss the logical strengths and weaknesses of the parties'arguments and the court's reasoning; and identify and analyzecompeting policy considerations about what the law should be.

When given a hypothetical problem, students should be ableto identify and discuss any claims and defenses that the partiesmight assert and the remedies that they might seek.

Students should be familiar with the history of the draftingof the Constitution, the goals of its Framers, criticism of thesegoals, and alternative theories about how to interpret theConstitution.

(c) Exercise of proper professional and ethical responsibilitiesto clients and the legal system

Students should be able to evaluate the legal advice thatwas given in actual cases, suggest what would have been betterlegal advice, and formulate advice that should be given in thefuture.

Students should be able to identify and discuss variousethical issues that arise in constitutional cases (e.g., whetherlawyers should advise government officials that they can violatethe Constitution because various doctrines might prevent judicialreview).

(d) Other professional skills needed for competent and ethicalparticipation as a member of the legal profession(including, but not limited to, interviewing, counseling,negotiation, fact development and analysis, trial practice,document drafting, conflict resolution, organization and

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management of legal work, collaboration, culturalcompetency, and self-evaluation)

Students should be able to present arguments as if they wererepresenting clients in constitutional disputes.

Students should be able to discuss controversial legal andpolicy issues in a professional and respectful manner.

Students should understand the role of lawyers in advisingclients (including government officials) about constitutionalissues.

Students should be familiar with those events in U.S.history (e.g., the Revolutionary War, the Founding Era, Slaveryand the Civil War, the Great Depression, World War II, the CivilRights Era, Watergate, etc.) that are necessary for understandingthe constitutional issues covered in the course.

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