Constitutional Law 1

Dormant Commerce Clause

A concept related to, but distinct from, preemption is the Dormant Commerce Clause. Despite its name, the Dormant Commerce Clause is not written in the text of the Constitution. Instead, it is a rule of law that has been inferred from the grant of congressional power under the Commerce Clause. Although the Commerce Clause gives Congress a broad power to regulate interstate commerce, that power is not exclusively federal. The states also may regulate interstate commerce, although they have less authority than Congress to do so. Broadly stated, the Dormant Commerce Clause prohibits the states from passing laws that either discriminate against or unjustifiably burden interstate commerce.

Enumerated Article I Powers

Article I authorizes Congress to exercise a range of enumerated powers. Perhaps the most widely used of these powers are those related to commerce, taxing, and spending, as well as war, defense, and foreign affairs. The remaining enumerated powers include, among other things, power over copyright law, immigration, and regulation of federal land.

United States v. Morrison

(14th Amendment) Congress enacted a statute that allowed women who were victims of gender-based violence to sue their attackers in federal court. Congress relied on its Fourteenth Amendment enforcement power to justify the law. However, the Fourteenth Amendment did not authorize Congress to regulate private parties. The federal statute was therefore unconstitutional.

Seneca Nation of Indians v. Christy

(Adequate and Independent State Grounds) A plaintiff claimed in state court that a conveyance of Native American land without ratification by Congress violated a federal statute. However, the state court held that the plaintiff's action was barred by the state's statute of limitations. Because the judgment rested solely on state law, the state ground was adequate and independent of federal law, and the U.S. Supreme Court would not review the case.

New York v. Class

(Adequate and Independent State Grounds) A state supreme court held that a gun seized from an arrestee's car had to be excluded from evidence at trial as the product of an unlawful search and seizure. In reaching its decision, the state court mentioned the state's constitution only once and did so in conjunction with the U.S. Constitution. Moreover, the state court cited both federal and state cases for the same propositions. The state court did not make a plain statement that it had relied only on state law, and its opinion showed that it had relied at least partly on federal law. Thus, there was no adequate-and-independent state ground for the decision, and the U.S. Supreme Court had jurisdiction to review the state-court case.

Massachusetts v. Envtl. Prot. Agency

(Causation) A plaintiff challenged a federal agency's refusal to regulate greenhouse-gas emissions linked to global warming. Because there was a causal connection between greenhouse-gas emissions and the environmental damage caused by global warming, the plaintiff's alleged injury was fairly traceable to the agency's refusal to regulate greenhouse-gas emissions. The plaintiff thus satisfied the causation requirement for standing.

Allen v. Wright

(Causation) The plaintiffs sued the federal government to challenge the grant of tax exemptions to racially segregated private schools. The plaintiffs alleged that the exemptions interfered with their children's right to attend integrated schools. However, the alleged injury was not fairly traceable to the federal government, because it was unclear whether the schools would change their policies if the tax exemptions were eliminated. Moreover, the alleged injury came about through the actions of third parties—the schools—which further weakened the causal connection between the tax exemptions and the discrimination. Thus, the plaintiffs could not show causation and did not have standing.

Bd. of Trs. of Univ. of Ala. v. Garrett,

(Congressional Abrogation of State Sovereign Immunity) Congress enacted a statute that allowed private parties to sue state governments for disability-based discrimination in employment. However, Congress failed to identify a pattern of systematic discrimination by state employers against disabled persons. Thus, the remedy of allowing private parties to recover damages from the states was not congruent and proportional to the violation targeted by Congress, and the statute was unconstitutional.

Nev. Dep't of Human Res. v. Hibbs,

(Congressional Abrogation of State Sovereign Immunity) To combat gender discrimination in the workplace, Congress passed a statute entitling state employees to take family-care leave and allowing employees to sue the state for damages if their states violated this entitlement. The statute was a response to pervasive discrimination by the states in granting family-care leave. Thus, the remedy of damages suits was both congruent and proportional to the scope of the states' violations and was a valid exercise of Congress's Fourteenth Amendment enforcement power.

Express or Implied Authorization

(Congressional Authorization or Disapproval) First, the president has the broadest power to act if Congress has provided express or implied authorization. In that case, the president effectively acts with the entire power of the federal government.

Silence by Congress

(Congressional Authorization or Disapproval) Second, if Congress has remained silent on the matter, then the president may rely only on his own Article II powers. However, if the matter is one in which the legislative and executive powers overlap, or in which the allocation of power is unclear, then past or present congressional acquiescence might give the president additional latitude. This represents a middle zone of presidential power.

Express or Implied Contrary Intent

(Congressional Authorization or Disapproval) Third, the president has the least power to act if Congress has expressed or implied an intent contrary to the president's actions. In this case, the president can rely only on his Article II powers minus whatever power Congress may have over the matter. This therefore represents the lowest point of presidential power.

H.P. Hood & Sons, Inc. v. Du Mond

(Discriminatory Test) A state denied an out-of-state corporation's application for a license to construct a new milk-processing plant within the state. The purpose of the denial was to promote the sale of milk by in-state producers by keeping out interstate competition. Because the protection of local economic interests is not a legitimate objective that justifies discrimination against interstate commerce, the denial was unconstitutional.

Hughes v. Oklahoma

(Discriminatory Test) A state passed a statute forbidding the transport of minnows out of the state but placing no limits on the capture and transport of minnows within the state. A commercial minnow farmer from another state challenged the statute under the Dormant Commerce Clause. The state defended the statute by arguing that it sought to preserve its natural resources by preventing overfishing of minnows. However, assuming that this was a legitimate state purpose, the state had chosen the most discriminatory method available to serve that purpose by completely blocking the flow of commerce out of the state. Less discriminatory alternatives were available, and the statute therefore violated the Dormant Commerce Clause.

Maine v. Taylor

(Discriminatory Test) A state passed a statute forbidding the transport of minnows out of the state but placing no limits on the capture and transport of minnows within the state. A commercial minnow farmer from another state challenged the statute under the Dormant Commerce Clause. The state defended the statute by arguing that it sought to preserve its natural resources by preventing overfishing of minnows. However, assuming that this was a legitimate state purpose, the state had chosen the most discriminatory method available to serve that purpose by completely blocking the flow of commerce out of the state. Less discriminatory alternatives were available, and the statute therefore violated the Dormant Commerce Clause.

Employee Retirement Income Security Act, 29 U.S.C. § 1144(a) (2012)

(Express Preemption) A federal statute regarding employee benefit plans provided that "the provisions . . . of this chapter shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan described in . . . this title." Because Congress explicitly stated its intent to preempt state law, the statute prevents the states from regulating employee benefit plans.

Arizona v. United States

(Implied Preemption) A state enacted a statute imposing criminal penalties on noncitizens present or working in the state who had failed to register with the federal government. However, Congress had already enacted a full set of standards governing the registration of noncitizens, implying that it intended to occupy the field for regulation of noncitizen registration. The federal standards therefore implicitly preempted state law under the doctrine of field preemption.

Fla. Lime & Avocado Growers, Inc. v. Paul

(Implied Preemption) A state enacted a statute requiring that avocados transported or sold within the state contain a minimal percentage of oil. Although a federal statute already established quality standards for avocados, those standards were unrelated to oil content. Because it was possible to comply with both the state and federal laws simultaneously, and there were no other indications of preemption, the federal statute did not preempt state law.

Crosby v. Nat'l Foreign Trade Council

(Implied Preemption) A state enacted a statute to discourage doing business with a foreign country. However, Congress subsequently imposed a set of economic sanctions on that country and authorized the president to control those sanctions and determine a comprehensive foreign-relations strategy toward the country. The state statute presented an obstacle to the purposes and objectives of Congress. Thus, the federal statute implicitly preempted state law under the doctrine of obstacle preemption.

Roe v. Wade

(Mootness) ) A pregnant woman challenged a law prohibiting abortion. By the time the Supreme Court considered the case, the woman had already given birth, and she could no longer be affected by a favorable decision. However, in any future cases challenging the law, a plaintiff would have given birth by the time the case reached an appellate court, because the appellate process usually takes longer than a human pregnancy. The issue was therefore capable of repetition, yet evading review: if the Supreme Court treated the case as moot because of the birth, then a challenge to the law might never be heard on appeal. The case therefore was not moot

U.S. Parole Comm'n v. Geraghty

(Mootness) A federal prisoner filed a class-action lawsuit on behalf of all federal prisoners, challenging the guidelines for parole release. However, the prisoner was released while the case was pending. Although the prisoner no longer had an individual claim of any practical significance, the remaining members of the class could still be affected by a favorable decision. The case was not moot

DeFunis v. Odegaard

(Mootness) A student claimed that a law school's admission process was unconstitutional. However, the law school admitted the student while the case was pending. By the time the Supreme Court considered the case, the student was within a few months of graduating. The student could no longer be affected by the law school's conduct, and the claim of unconstitutionality could be raised by other students in the future if necessary. The student's claim was moot.

McCulloch v. Maryland

(Necessary and Proper Clause/Implied Power) A state challenged a federal statute that incorporated a national bank of the United States, arguing that the Constitution did not expressly authorize Congress to charter a bank. The Constitution does not prohibit establishing a national bank but is merely silent as to whether Congress may do so. Under the Necessary and Proper Clause, Congress has the implied power to incorporate a national bank as an appropriate means of exercising various of its enumerated powers, including the power to coin money, the power to raise an army, and the power to spend money for the general welfare. Thus, the federal statute was constitutional.

S. Pac. Co. v. Arizona ex rel. Sullivan

(Non-discriminatory Test) A state law prohibited the operation of trains longer than 70 cars within the state. The law was intended as a safety measure based on the theory that longer trains would cause more accidents. The law did not discriminate against interstate commerce, because it applied to all trains, not just those from outside the state. However, the law severely burdened interstate commerce by forcing railroad companies to pause and temporarily shorten their trains before passing through the state. This practice cost the railroads over $1,000,000 per year. Although the state had the legitimate objective of public safety, there was no evidence that the regulation actually reduced accidents. Thus, the local benefit was effectively zero. The burden on interstate commerce (over $1,000,000) greatly outweighed the local benefit (zero). Therefore, the statute was unconstitutional.

Minnesota v. Clover Leaf Creamery Co.

(Non-discriminatory Test) A state law prohibited the sale of milk in nonreturnable plastic containers. Several dairies challenged the law under the Dormant Commerce Cause. The law did not discriminate against interstate commerce, because it applied equally to in-state sellers and out-of-state sellers. The state had the legitimate local purpose of protecting the environment from plastic waste, and the container ban was a rational way to promote that interest. Finally, the burden on interstate commerce was slight as compared to the local benefits. Most dairy sellers routinely used multiple types of containers and could readily adapt their packaging to the state's law without incurring significant costs. Thus, the law did not violate the Dormant Commerce Clause.

Nixon v. United States

(Political Question) A federal judge was sentenced to prison for perjury but refused to resign. Congress impeached the judge, and the Senate convened a special committee to hear the evidence. Based on the committee's recommendation, the full Senate voted to convict, and the judge was removed from office. The judge then filed suit, claiming that his impeachment was unconstitutional because the full Senate was required to hear his impeachment case. However, Article I of the Constitution clearly provides that the Senate has the sole power to try all impeachments. Because this is a textually demonstrable commitment of the question to the legislative branch by the Constitution, the judge's claim was a nonjusticiable political question

Baker v. Carr

(Political Question) A plaintiff challenged a state legislature's failure to redraw voting districts as required by the state constitution. The plaintiffs claimed that this failure deprived them of representation in the state legislature in violation of the federal guarantee of equal protection of the laws. Although the defendant argued that the issue was a political question, there were no factors indicative of a political question, such as a risk of embarrassment to the federal government. Because there are well-developed and familiar standards for adjudicating equal-protection issues, the plaintiff's challenge was not a political question.

Vieth v. Jubelirer

(Political Question) A plaintiff claimed that a state legislature had gerrymandered congressional districts to favor one political party in violation of the Constitution. However, there was a lack of judicially discoverable or manageable standards for determining the constitutionality of political gerrymandering. In particular, courts had spent nearly 20 years attempting to discern the applicable standards, without success. The plaintiff's claim was therefore a nonjusticiable political question. [

Poe v. Ullman

(Ripeness) A married couple challenged a state statute that banned the use of contraceptives. However, the statute had never been enforced, despite the common sale of contraceptives in drugstores throughout the state. The couple's claim was dismissed under the ripeness doctrine. Several years later, the director of a birth-control clinic was arrested and fined under the same statute for providing contraceptives. The director's claim was ripe for judicial review due to her actual injury resulting from enforcement of the statute.

United Pub. Workers of Am v. Mitchell

(Ripeness) Several federal employees challenged a statute that forbade them from actively participating in political campaigns. However, only one of the employees had violated the statute and was being threatened with disciplinary action from his employer. Because the remaining federal employees had neither violated the statute nor been threatened with disciplinary action, their claims were unripe for judicial review

South Dakota v. Dole

(Spending Power/ Conditional Spending) Congress enacted a statute withholding up to 5 percent of federal highway funds from states that allowed anyone under age 21 to buy or possess alcohol. The condition was unambiguous and was reasonably related to the federal interest in promoting highway safety. The condition did not require the states to do anything unconstitutional, because each state has the power to set its drinking age. Finally, the potential loss of only 5 percent of federal highway funds was not so great as to be coercive, i.e., it did not leave the states with no choice but to comply with Congress's will. The statute was therefore constitutional.

Nat'l Fed'n of Indep. Bus. v. Sibelius

(Spending Power/ Conditional Spending) Congress gave large grants to the states to defray the cost of Medicaid, a program that provided medical services to needy individuals. Congress passed a statute requiring the states either to expand Medicaid coverage or lose all federal Medicaid funding. On average, noncompliance would have cost each state around 10 percent of its entire annual budget. This condition was so drastic that the states had no choice but to accept it. Thus, the condition was unduly coercive and was unconstitutional.

NLRB v. Jones & Laughlin Steel Corp

(Substantial Effect on Interstate Commerce) A steel corporation challenged a federal statute that protected the right of employees to form labor unions, arguing that Congress could not prevent the company from firing employees for trying to unionize. The corporation conducted a large amount of interstate business, including the sale and transport of goods and materials across multiple states. Even though firing employees is an intrastate activity, a labor strike caused by the inability to unionize would be likely to have a far-reaching effect on interstate commerce. Because Congress may regulate even wholly intrastate activities that might have a substantial effect on interstate commerce, the statute was upheld.

Youngstown Sheet & Tube Co. v. Sawyer

(Take Care Clause) The president issued an executive order directing the federal government to seize control of steel mills nationwide to prevent a labor strike from affecting national security. However, no federal statute authorized the president's order, nor could authority for the order be found in the text of the Constitution. For these reasons, the order created new law rather than executing federal law. The order was therefore unconstitutional.

Dames & Moore v. Regan

(Take Care Clause) The president issued several executive orders implementing an agreement with a foreign country to resolve a hostage crisis. Among other things, the orders nullified litigants' pre-judgment attachments of the foreign country's property in the United States and ordered the transfer of the foreign country's assets within the United States to the custody of the federal government. The orders regarding the assets were issued under a federal statute that expressly authorized the president to treat foreign assets in this way. Because the president used the executive orders to carry out existing federal law, the executive orders were constitutional.

Nat'l Fed'n of Indep. Bus. v. Sebelius

(Taxing Power) Congress enacted a statute requiring individuals either to have health insurance or to pay a fee to the federal government. The fee was designed to incentivize individuals to purchase insurance. The fee would normally be less than the cost of buying insurance, and by law it could never be more. The fee was to be collected by payment made with the individual's annual income-tax return. Finally, the fee was expected to raise revenue for the U.S. Treasury. For these reasons, the fee functioned as a tax, not as a penalty, and it was a permissible exercise of the taxing power

United States v. Cox

(The Nonprosecution Power) A federal grand jury returned a perjury indictment against two witnesses in a votingrights suit brought by the federal government, even though prosecutors did not believe that the witnesses perjured themselves. An indictment required the signature of the local United States Attorney, who refused to sign and was held in contempt. Because the executive has constitutional discretion to refrain from prosecuting particular offenders, the attorney had the discretion to decline to sign the indictment. Thus, the contempt citation was vacated.

Champion v. Ames

A defendant shipped foreign lottery tickets from one state to another state in violation of a federal statute criminalizing the interstate transport of lottery tickets. After being indicted by the federal government, the defendant challenged the statute as exceeding Congress's power over interstate commerce. The statute was upheld, because the commerce power allows Congress to exclude articles from interstate commerce, regardless of congressional motives.

Nixon v. United States (Impeachment)

A federal judge refused to resign from office after being sentenced to prison for perjury. After the House of Representatives impeached the federal judge for misconduct, the Senate tried the impeachment by committee, with the full Senate only voting on the committee's recommendation to remove the federal judge from office. Although the federal judge challenged the Senate proceedings, the lawsuit presented a nonjusticiable political question, because Article I's commitment to the Senate of the sole power to try impeachments meant that federal courts lacked the power to review the means by which the Senate conducted the trial of the judge. The removal of the federal judge was not unconstitutional.

Wickard v. Filburn

A federal statute set quotas on wheat production. A farmer exceeded his quota, and he challenged the statute. The farmer argued that the law exceeded the commerce power because any excess wheat would be consumed privately at his farm and would never enter interstate commerce. However, even though the farmer did not by himself have an effect on interstate commerce, the production of excess wheat by many farmers, taken together under the aggregation principle, would have a substantial effect on interstate commerce. An aggregate surplus of wheat could eventually flow into the market or keep surplus holders from buying wheat on the open market to meet their needs This, in turn, would substantially affect the interstate market for wheat. Thus, the statute was constitutional. (also see Gonzales v. Raich, 545 U.S. 1 (2005) (holding that aggregation principle allows regulation of personal-use medical marijuana).

Legislative Veto

A legislative veto is a resolution passed by one or both houses of Congress, without the president's signature, that nullifies or cancels an action taken by the executive branch. A legislative veto enables Congress to exercise control over executive action without going through the process of bicameralism and presentment. This violates the Presentment Clause and, in the case of a one-house veto, the bicameralism requirement. Accordingly, the legislative veto is unconstitutional. As a practical matter, Congress has found other ways to control executive action, such as by making informal agreements with administrative agencies about their expenditure processes.

Line-Item Veto

A line-item veto nullifies or cancels only some portions of a bill rather than the entire bill. This violates the Presentment Clause, which the Supreme Court has interpreted to require both the president and Congress to approve the complete text of all bills that become law. Accordingly, the president may not exercise a line-item veto to effectively repeal or amend portions of bills. Note also that Congress may not authorize the president to exercise line-item vetoes.

Heart of Atlanta Motel, Inc. v. United States

A motel owner challenged a federal statute forbidding racial discrimination in places of public accommodation. The owner argued that the motel only operated within the borders of the state and that Congress therefore could not regulate the motel under the Commerce Clause. Many of the motel's users stayed at the motel while traveling from state to state, an activity that was within the definition of interstate commerce. Thus, even though the motel's business took place solely inside the state, Congress could regulate the motel to prevent the harm to interstate commerce that would result from discrimination by the motel.

Ex parte McCardle

A newspaper editor was arrested and jailed for publishing articles critical of the state government. The editor unsuccessfully sought to be released under habeas corpus in a federal trial court. Congress had enacted a statute allowing the Supreme Court to hear appeals of habeas corpus denials. The editor appealed to the Supreme Court. While the appeal was pending, however, Congress passed another statute repealing this grant of appellate jurisdiction to the Supreme Court. Consequently, the Supreme Court no longer had the appellate jurisdiction to consider the editor's petition.

Elk Grove Unified School District v. Newdow

A noncustodial divorced father sued in federal court on behalf of his daughter to challenge her exposure to the Pledge of Allegiance at school. A state court had previously given the mother sole custody and final decision-making authority as to the daughter's upbringing. Moreover, there was evidence that neither the mother nor the daughter objected to the recitation of the pledge at school. The father's interests therefore did not appear to be inextricably linked with those of his daughter and may have been antagonistic to them.

Lujan v. Defs. of Wildlife

A plaintiff challenged a federal regulation that jeopardized endangered species. However, the plaintiff did not have an actual connection to an endangered species (e.g., observing or working with endangered animals) and only had a hypothetical injury (e.g., the inability to fulfill an abstract desire to observe or work with such animals in the future). The plaintiff failed to prove that she suffered an injury-in-fact.

Jacobson v. Massachusetts

A plaintiff challenged a state statute that required any city or town within the state to vaccinate its residents whenever necessary to protect public health or safety. A state government has the police power to enact laws that are necessary to protect the health and safety of its residents. The state statute was therefore constitutional.

Marbury v. Madison

A plaintiff filed suit under a federal statute, seeking a writ of mandamus from the Supreme Court to compel the U.S. Secretary of State to deliver judicial commissions that were signed by the president. However, the federal statute impermissibly expanded the original jurisdiction of the Supreme Court by giving it the authority to issue an original writ of mandamus to a federal officer, thereby violating the Constitution's limits on the Supreme Court's original jurisdiction. Thus, the federal statute was unconstitutional.

Steel Co. v. Citizens for a Better Environment

A plaintiff sought damages and an injunction to remedy a defendant's pas t violation of a federal statute requiring companies to submit timely reports regarding toxic chemicals and hazardous substances. However, the plaintiff was not entitled to damages, and a forward-looking injunction would not remedy the defendant's past violation. The plaintiff failed to satisfy the redressability element of standing.

The Market-Participant Doctrine Exception to DCC

A state is not subject to the Dormant Commerce Clause if the state is acting as a buyer or seller and not as a regulator making rules for the market as a whole. This is called the market-participant doctrine. The doctrine allows a state to discriminate against interstate commerce when it participates in the market, e.g., to purchase only in-state goods or to sell only to in-state buyers. However, the state may only regulate its own transactions in the immediate market; a state may not attempt to regulate subsequent, related transactions or so-called downstream markets.

Fletcher v. Peck

A state legislature was bribed into approving the sale of land to development companies at a favorable price. Subsequently, new members of the state legislature enacted a statute repealing the sale. However, the Constitution prohibits states from passing any law that impairs the contractual rights of citizens. Thus, the state statute was unconstitutional.

United States v. Lopez

A student challenged a federal statute that prohibited the possession of firearms in school zones, arguing that Congress may not regulate an activity that is unrelated to commerce. However, the possession of a handgun in a school zone was not an economic activity. Nor could gun possession be shown to have a substantial effect on interstate commerce, except through a long chain of inferences that would effectively erase any limits on the commerce power. Thus, the statute was unconstitutional.

Suspension of Habeas Corpus

A writ of habeas corpus enables a detainee or prisoner to challenge the legality of his detention by the government. The Suspension Clause provides that the "privilege of the writ of habeas corpus" cannot be suspended except "in cases of rebellion or invasion when the public safety may require it." [U.S. Const. art. 1, § 9, cl. 2.] Therefore, absent a valid suspension of habeas corpus, neither the president nor Congress may deprive individuals protected by the Suspension Clause of the right to petition for a writ of habeas corpus unless the government provides an adequate substitute, i.e., an alternative method for challenging detention.

Missouri v. Holland

After the United States entered into a treaty with a foreign country to restrict the killing of migratory birds, Congress enacted a statute to implement the treaty's restrictions. Congress might have lacked the power to regulate the killing of the birds under its enumerated powers. Nonetheless, the statute was upheld as a necessary and proper means of carrying the duly enacted treaty into effect.

Congressional Authorization or Disapproval

Although the legislative and executive powers are theoretically distinct, there are areas in which the two branches may share power, or in which the precise distribution of power is unclear. In these situations, the extent of the president's authority may depend on congressional authorization or disapproval of a course of action. One well known formulation describes three combinations of congressional and executive power as they relate to the president's ability to act. These categories are not mathematical formulations, but they nonetheless guide the courts in assessing the constitutionality of presidential action. Express or Implied Authorization Silence by Congress Express or Implied Contrary Intent

Hamdi v. Rumsfeld

An American citizen was captured and detained by the U.S. military in a foreign combat zone and classified as an enemy combatant. The citizen sought a writ of habeas corpus. The president could not indefinitely detain an American citizen without statutory authorization for the detention and without providing the basic protections of due process, such as notice of the factual basis for the classification and a fair opportunity to rebut the classification in court. A statute authorizing the use of force against the groups responsible for the September 11, 2001 terrorist attacks provided the requisite authorization, but the citizen-detainee had a dueprocess right to a meaningful opportunity to challenge the government's case against him before a neutral arbiter.

Injury-in-Fact

An injury-in-fact exists if the plaintiff alleges an injury that is concrete and particularized, as well as actual or imminent. A concrete and particularized injury is one that is identifiable and affects the plaintiff personally. An actual injury is an injury that the plaintiff has already suffered. An imminent injury is injury that has yet to occur. To support standing, however, an imminent injury must not be excessively speculative, hypothetical, or remote. Although there is no definitive test for how speculative is too speculative, the courts tend to demand at least some likelihood that the injury will be forthcoming unless the courts act to prevent it.

Congressional Control of Membership

Article I gives both the House of Representatives and the Senate the power to make their own rules and to expel members by a two-thirds vote. Article I does not allow either the House or the Senate to refuse to seat a member who otherwise meets the Constitution's qualifications for office.

Legislative Power to Patents and Copyrights

Article I grants Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." [U.S. Const. art. I, § 8, cl. 8.] This clause is variously called the Patent Clause, the Copyright Clause, or the Intellectual Property Clause. The clause allows Congress some latitude to determine the duration of patents and copyrights and the conditions on which they will be granted. A third form of intellectual property, trademarks, has developed as an exercise of the commerce power. [See Eldred v. Ashcroft, 537 U.S. 186 (2003).]

Legislative Source of Power

Article I vests "all legislative Powers herein granted . . . in a Congress of the United States, which shall consist of a Senate and House of Representatives." [U.S. Const. art I, § 1.] Congress has both enumerated powers and implied powers. The enumerated powers are those expressly granted in the Constitution, primarily in Article I, Section 8. Congress may also exercise implied powers. An implied power is a power inferred from the text and structure of the Constitution as a permissible means for Congress to use in exercising an enumerated power. Several amendments to the Constitution also provide Congress with the authority to enforce the amendments' substantive provisions, especially in the field of civil rights. Congress may not act beyond the scope of its express or implied powers.

Executive Power Source

Article II vests "the executive Power . . . in a President of the United States of America." [U.S. Const. art II, § 1, cl. 1.] Some of the president's powers are traced to this Vesting Clause, while others are derived from more specific provisions of Article II. As the chief executive of the United States, the president has significant authority over both domestic and foreign affairs.

The Case-Or-Controversy Requirement

Article III limits the power of the judicial branch to actual cases or controversies. The courts generally use the terms case and controversy interchangeably, or as a collective noun, i.e., case or controversy. The Supreme Court has interpreted the case-orcontroversy requirement to encompass the requirements of standing, ripeness, and mootness as to any claim brought in federal court. Additionally, the case-or-controversy requirement prohibits advisory opinions, which are judicial opinions that merely interpret a law without adjudicating an actual dispute between opposing parties.

Judicial Review Source of Power

Article III of the Constitution establishes the judicial branch of the federal government. Article III vests judicial power in one Supreme Court, as well as in any lesser federal courts that Congress may create, such as the federal district courts (trial courts) and circuit courts (appellate courts). Marbury v. Madison. In the landmark case of Marbury v. Madison, the Supreme Court held that the judicial branch has the final authority to interpret the Constitution and to declare acts of Congress unconstitutional.

Judicial Review Jurisdiction

Article III of the Constitution provides that the power, or jurisdiction, of the judicial branch extends to all cases, in law and equity, that arise under the Constitution, treaties, and laws of the United States, along with eight other categories (or heads) of federal jurisdiction. Among these additional heads of jurisdiction are: • cases in which the United States is a party, • cases between two or more states, • cases between a state and citizens of another state, and • cases between citizens of different states.

Causation

Causation exists if the plaintiff alleges an injury that is fairly traceable to the defendant's challenged action. There is no objective measurement for causation, but the Supreme Court has said that there must be a sufficiently strong relationship between the defendant's action and the injury. In other words, the link between the defendant's actions and the plaintiff's injury must not be too remote or merely speculative.

Morrison v. Olson (Principal and Inferior)

Congress authorized appointment of an independent counsel to investigate an executive-branch official. Although the independent counsel had some discretion in performing her duties, she could be removed by the Attorney General, a principal officer. In addition, her duties were limited to the investigation and prosecution of specific federal crimes within a specific factual context. Finally, her office was temporary and would terminate after she completed her limited duties. The independent counsel was therefore an inferior officer.

Interbranch Immunities

Each branch of the federal government has certain privileges and immunities under federal law that prevent the other branches from improperly interfering with the exercise of its power.

Morrison v. Olson (Appointment Power)

Congress authorized appointment of an independent counsel to investigate an executive-branch official. The statute provided that the independent counsel would be appointed by a special federal court. A plaintiff challenged the appointment, arguing that the judicial branch could not appoint a prosecutor, who was an executive official. However, the independent counsel was an inferior officer. Thus, Congress had the authority to vest that appointment in the courts under the Appointments Clause. Moreover, although the appointment was an interbranch appointment, there was no incongruity in a court appointing a prosecutor, because the appointment of prosecutors is a well-established function of the courts. Thus, the appointment was constitutional.

Morrison v. Olson (Removal Power)

Congress authorized the appointment of an independent counsel to investigate an executive-branch official. The statute provided that the independent counsel could be removed only by the Attorney General, and only for good cause. Because the independent counsel was an inferior officer, and because the Attorney General was directly accountable to the president, the good-cause restriction did not unduly interfere with the president's ability to execute the laws. Thus, the removal restriction was constitutional.

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd

Congress created a federal board to supervise the accounting industry. The board members were to be appointed by the commissioners of the federal Securities and Exchange Commission. The board members could only be removed by the commissioners, and only for good cause. The commissioners, in turn, could be removed by the president only for good cause. This two-layer for-cause restriction unconstitutionally interfered with the president's Article II power. The president's inability to remove the board members, combined with his very limited ability to remove the commissioners who were responsible for them, meant that the president effectively could not oversee either the board or the officials responsible for the board.

Congressional Power to Define and Limit Federal Jurisdiction

Congress does not have the power to expand or limit the Supreme Court's original jurisdiction in any way. However, Congress has the power to define or limit the Supreme Court's appellate jurisdiction by passing legislation. For example, Congress has enacted statutes that allow the Supreme Court to exercise its appellate jurisdiction in a discretionary manner. This Congressional authority arises from Article III, which provides that "the Supreme Court shall have appellate jurisdiction . . . with such exceptions, and under such regulations as the Congress shall make." [U.S. Const. art. III, § 2.] Congress also has limited the Supreme Court's appellate jurisdiction over state-court decisions to cases involving federal questions, even though Article III would allow broader appellate jurisdiction. [See, e.g., 28 U.S.C. § 1257 (2012) (expanding the Supreme Court's discretion over its exercise of appellate jurisdiction).]

Woods v. Cloyd W. Miller Co.

Congress enacted a federal statute to control rent in order to prevent a housing deficit due to the heavy demobilization of veterans at the end of World War II. A plaintiff challenged the federal statute after the official termination of hostilities, arguing that Congress could no longer exercise the war power. However, the war power does not necessarily end with the termination of hostilities and may be used to enact legislation that remedies the effects of war, such as increasing supplies depleted by war efforts or controlling rent to prevent a housing deficit due to the demobilization of veterans. Thus, the federal statute was constitutional.

Bowsher v. Synar

Congress enacted a statute authorizing the comptroller general, a federal officer, to evaluate federal budget reports and make recommendations to the president. Congress retained removal power over the comptroller general. Because only the president may remove executive officials, the statute was unconstitutional.

United States v. Butler

Congress enacted a statute authorizing the executive branch to limit crop production and taxing any farmers who exceeded those limits. The federal statute was held unconstitutional because the taxing power may not be used to indirectly regulate agricultural production, which was a power reserved to the states by the Tenth Amendment. However, subsequent interpretations of the taxing power might lead to a different result today.

United States v. Curtiss-Wright Export Corp.

Congress enacted a statute authorizing the president to set and regulate embargoes to prohibit the export of arms shipments to foreign countries engaged in war. A plaintiff claimed that the statute unconstitutionally authorized the president to exercise legislative power. However, Congress did not have the same resources and information that were available to the president regarding foreign affairs and could not appropriately determine whether an embargo against a foreign country was necessary. Because the president should have broad discretion over this issue, the statute was constitutional.

Jones v. Alfred H. Mayer Co.

Congress enacted a statute that guaranteed the right of all citizens of the United States to sell, possess, and transfer real and personal property. A man brought an action under the federal statute claiming that the defendants had refused to sell him a house based solely on his race. The defendants claimed that the federal statute was inapplicable to them because they were private actors, and the statute applied only to state action. However, Congress has power under the Thirteenth Amendment to define the badges and incidents of slavery as including restraints on fundamental rights and may prohibit both public and private racial discrimination regarding the right to sell, possess, and transfer property. Thus, the federal statute was constitutional and applicable to the defendants' conduct.

Congressional Oversight

Congress has the power to conduct oversight of the executive branch, both as an incident of its express regulatory powers and under the Necessary and Proper Clause, as an aid to executing those powers. Oversight allows Congress to investigate matters within its legislative authority and, as necessary, to subpoena witnesses and evidence and to hold witnesses in contempt. Congress often carries out oversight through various legislative committees and subcommittees.

Legislative Power of Immigration

Congress has the power to regulate immigration by admitting or excluding aliens from the United States and by setting the terms on which aliens may enter or remain. This power has been held to be an attribute of national sovereignty and to include aspects of Congress's power over war and foreign affairs. Thus, the Supreme Court has been highly deferential to Congress in reviewing challenges to immigration laws. [See Trump v. Hawaii, 585 U.S. ___, 138 S. Ct. 2392 (2018); Fiallo v. Bell, 430 U.S. 787 (1977).]

Congress's Institutional Powers

Congress has two special sets of powers relating to its institutional role—one involving Congress's control of its own membership, and one involving its ability to conduct oversight of the other branches.

United States v. Darby

Congress passed a law forbidding the transport in interstate commerce of goods manufactured under substandard labor conditions. The law was upheld, in part because the Commerce Clause allows Congress to exclude goods from interstate commerce, including goods that Congress deems harmful or antithetical to public policy

Conditional Spending

Congress will sometimes use the spending power to influence the states by placing conditions on the states' receipt of federal funds. In doing so, the federal government attempts to incentivize the states to behave in certain ways or to pass certain legislation. This process is called conditional spending. The use of conditional spending is valid if the conditions (1) are clearly stated so the states can choose whether to accept the funds on Congress's terms, (2) are reasonably related to a federal interest in the relevant program or project, (3) do not require the states to do anything that would be unconstitutional, and (4) are not so drastic or consequential as to unduly coerce the states into accepting.

Constitutional Standing

Constitutional standing arises directly from Article III's case-or-controversy requirement and is a constitutional prerequisite to federal adjudication. This form of standing is sometimes called Article III standing. In Lujan v. Defenders of Wildlife, the Supreme Court confirmed the existence of a three-part test for constitutional standing in federal court. The plaintiff must prove (1) an injury-in-fact (2) that was caused by the defendant and (3) that is redressable by the courts (Lujan)

Congressional Approval Exception to DCC

Despite the Dormant Commerce Clause, a state may burden, discriminate against, or otherwise regulate interstate commerce if Congress has expressly authorized the state to do so. This is a consequence of Congress's broad power over interstate commerce. Congress is not bound by the Dormant Commerce Clause, which limits only the states. As the body with the ultimate power to regulate interstate commerce, Congress has the power to shape interstate commerce as it sees fit (within expansive constitutional limits). This includes the power to allow state regulation that would otherwise be impermissible.

Justiciability (Judicial Review In Operation)

Even if a case would otherwise fall within some category of federal judicial power, the courts must refuse to hear the case if it is not justiciable, that is, if it is not appropriate for resolution by the federal courts. The concept of justiciability includes an array of constitutional requirements and judicially created limitations on the exercise of judicial power. To be justiciable, a claim must satisfy the case-or-controversy requirement of Article III, must not rest on an adequate and independent state ground, and must not present a political question. Together, these requirements help to preserve the separation of powers among the three federal branches by setting limits on the exercise of judicial authority.

Recess Appointments

Even if a presidential appointment requires the advice and consent of the Senate, the Constitution's Recess Appointments Clause authorizes the president to fill vacancies when the Senate is not in session. The president may make a recess appointment during any recess of the Senate, which includes recesses other than those that regularly occur between sessions of Congress. Moreover, the vacancy the president is filling need not have arisen during the recess. Recess appointments have the same effect as Senate confirmation, but they last only until the end of the subsequent session of Congress (on the assumption that the Senate will be able to vote on the appointee once Congress is back in session).

Executive Immunity and Privilege

Executive immunity ensures that members of the executive branch may freely enforce and execute the law, and executive privilege allows executive officials to protect state secrets involving the military, diplomacy, and national security.

Express Preemption

Federal law may expressly preempt state law if Congress explicitly states that the federal law is preemptive.

Implied Preemption

Federal law may implicitly preempt state law by: (1) directly conflicting with state law, such that simultaneous compliance with both laws is impossible; (2) stating purposes and objectives to which state law presents an obstacle; or (3) occupying a field of law, such that it is reasonable to infer that Congress intended to preempt all state laws in the entire field.

Boumediene v. Bush

Foreign detainees held by the U.S. military in a detention camp in a foreign country petitioned for a writ of habeas corpus to challenge the legality of their detention. Although a federal statute deprived federal courts of the power to hear these types of claims, the substitute procedures set forth by Congress did not provide an adequate or meaningful replacement for habeas corpus review. Because the Suspension Clause applied at the detention camp, the statute was unconstitutional, and the detainees had a right to seek habeas corpus review.

Rule Against Generalized Grievances

Historically, the Supreme Court treated the prohibition on generalized grievances, i.e., injuries shared generally by many or all citizens, as one branch of prudential standing. However, the Court more recently has reclassified that prohibition as a matter of Article III standing instead. (Meaning Constitutional Standing)

6 Factors to Consider in Political Question Doctrine

In Baker v. Carr, the Supreme Court set forth six factors that it considers relevant in identifying whether a case involves a political question: • a textually demonstrable commitment of the question to another branch by the Constitution, • a lack of judicially discoverable and manageable standards for decision-making, • the impossibility of reaching a decision without making a policy determination of a kind reserved to another branch, • the impossibility of independently reaching a decision without disrespecting another branch, • an unusual need to adhere to a political decision that has already been made, and • the potential for national embarrassment if multiple branches decide the same question in different ways.

Generalized Grievances Exception

In a narrow exception to this principle, the Supreme Court has held that a taxpayer may sue to challenge a Congressional expenditure as a violation of the First Amendment's Establishment Clause, which prohibits a Congressional establishment of religion.

Implied Powers of Congress

In addition to its enumerated powers, Congress has implied powers under the Necessary and Proper Clause, also called the Elastic Clause. This clause gives Congress the authority to "make all Laws which shall be necessary and proper for carrying into Execution the [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States." [U.S. Const. art. I, § 8, cl. 18.] In the landmark case of McCulloch v. Maryland, the Supreme Court held that the Necessary and Proper Clause authorizes Congress to exercise any incidental or implied powers that are useful or essential to the exercise of its enumerated powers, so long as the ends and the means do not violate the Constitution. Since then, the Supreme Court has continued to interpret the Necessary and Proper Clause broadly to allow Congress to exercise a variety of implied powers, such as setting a federal minimum wage (implied by the power to regulate interstate commerce), criminalizing mail fraud (implied by the power to establish post offices), and establishing the Air Force (implied by the power to regulate the armed forces). However, it is important to note that the Necessary and Proper Clause is not an independent source of Congressional power. Instead, it enables Congress to act in furtherance of its enumerated powers. Thus, if Congress invokes the Necessary and Proper Clause as a source of power, it must almost always do so in conjunction with an enumerated power.

Treaties versus Executive Agreements

In addition to negotiating treaties, the president may cooperate with foreign countries through executive agreements, which are agreements made by the president alone, without Senate approval. Although the Constitution does not expressly authorize executive agreements, they have been recognized as being within the president's authority. Thus, both a treaty and an executive agreement are valid ways for the United States to enter into agreements with other countries. Both are binding on the United States, and both can be used to accomplish any type of agreement on any subject. Like a treaty, an executive agreement that violates some provision of the Constitution is unenforceable, even if that means that the United States would be in violation of its obligation to the other parties to the agreement.

Discrimination against Interstate Commerce: Strict Scrutiny

In part, the Dormant Commerce Clause prohibits state laws that discriminate against interstate commerce. A statute is discriminatory if it favors in-state interests over outof-state interests or if it blocks interstate commerce at the state's border. Laws of this type are said to be protectionist, isolating the state from the national economy and improperly pursuing the state's interests at the expense of the nation as a whole. A state law that discriminates against interstate commerce will almost always be struck down. More formally, discriminatory laws are subject to a demanding standard of review called strict scrutiny. Under this standard, a discriminatory law will be struck down unless the state can prove that the law serves a legitimate state purpose that cannot be served by any nondiscriminatory alternative. The mere desire to protect instate economic interests is not a legitimate objective under this test.

Judicial Immunity

Judicial immunity ensures that judicial-branch actors may freely issue decisions and otherwise take action without fearing personal consequences. Federal judges have immunity from civil suits regarding the performance of their judicial functions, as long as the subject matter at issue is within their jurisdiction. A judge who has acted in the clear absence of jurisdiction does not have judicial immunity.

Legislative Immunity

Legislative immunity ensures that the members of the legislative branch may freely represent the interests of their constituents without fearing retaliation. Legislators have immunity from civil liability, grand jury questioning, and criminal prosecution under the Speech or Debate Clause of Article I, which provides that members of Congress may not be arrested or questioned for any speech or debate made in either house. This clause has been interpreted broadly to protect any official legislative activity, including committee reports, resolutions, and voting, as well as some actions taken by congressional aides. However, the immunity does not apply to acts outside the scope of these tasks.

Supremacy Clause

One constitutional manifestation of federalism is the Supremacy Clause, which provides that the "Constitution, and [federal statutes and treaties], shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." [U.S. Const. art. VI, cl. 2.] This clause establishes a hierarchy of laws under which valid federal law can preempt, or displace, conflicting state law, regardless of the relative wisdom of the competing federal and state policies or the strength of the state's regulatory interest versus that of the federal government.

Organizational Standing

Ordinarily, a plaintiff must sue on his or her own behalf and not through a third party. However, an organization has standing to sue on behalf of its members if (1) the individual members would have Article III standing to sue on their own; (2) the interests sought to be protected are germane to the organization's purposes; and (3) the lawsuit does not require the participation of individual members, e.g., to assess individualized damages. Note: The concept of organizational standing applies when an organization sues on behalf of its members, rather than on behalf of itself. Like any other plaintiff, an organization may sue on its own behalf for injuries that it has suffered or will suffer as an entity.

Redressability

Redressability exists if the plaintiff's injury is likely to be remedied by a favorable decision. In other words, the federal court must be able to provide some judicial remedy to alleviate, redress, or prevent the harm to the plaintiff.

Duke Power Co. v. Carolina Environmental Study Group

Residents who lived near a planned nuclear power plant challenged a federal statute that limited the nuclear industry's liability arising from nuclear incidents. Although a nuclear incident had not yet occurred, the construction of the planned nuclear power plant would cause real and immediate injury to the residents, such as negatively affecting the environment and reducing property values. Therefore, the case was ripe for judicial review.

War, Defense, and Foreign Affairs- Congress

Several of the enumerated powers of Congress involve war, defense, and foreign affairs. These include powers relating to the raising and supporting of armies, providing and maintaining a navy, regulating immigration, declaring war, and using the taxing and spending power for the common defense of the United States. Although the president is the commander-in-chief of the armed forces, the Militia Clauses authorize Congress to organize, arm, and call forth the militia to execute laws and repel invasions, and the Make Rules Clause empowers Congress to create a code to govern the conduct of members of the federal military. In addition, the Declare War Clause authorizes Congress to declare war against another nation. The Supreme Court has interpreted this clause broadly to allow Congress to enact any legislation that is relevant to the war power, such as supporting ongoing war efforts or remedying the consequences of a war that has already ended. Congress may also establish military courts and tribunals with jurisdiction over members of the United States military (but not civilians) or enemy militaries and combatants. Other powers related to war, defense, and foreign affairs are allocated to the president under Article II.

Singleton v. Wulff

Several physicians challenged a state statute prohibiting government funding for abortions that were medically unnecessary. The physicians based the claim in part on their patients' right to obtain abortions. Although the case involved third-party standing, the doctor-patient relationship created an inextricable link between the patients' right to abortions and the doctors' interest in performing the procedures. Moreover, the patients faced barriers to suing on their own behalf, including their privacy interests and the prospect that their abortion rights would become moot as their pregnancies advanced. Thus, the physicians had third-party standing to sue on behalf of their patients.

Adequate and Independent State Grounds

State courts sometimes decide cases by drawing on both federal law and state law. The Supreme Court has authority to interpret federal law, but it does not have authority to definitively interpret state law. Thus, under the adequate-and-independent-state-grounds doctrine, the Supreme Court lacks jurisdiction to review a state-court decision if the judgment is adequately supported by a state-law ground that is independent of federal law. A state ground is adequate if it fully disposes of the case on either procedural or substantive grounds, such that the application of federal law would not affect the outcome. However, the Supreme Court will not find an adequate state ground if there has been a miscarriage of justice by the state court in applying state law. A state ground is independent if the state court did not rely on federal law in reaching its conclusion. Presumption of Reliance. The state court's reliance on state law must be apparent from the face of the court's opinion, either through the state court's reasoning or through a plain statement by the state court that it did not rely on federal law. If it is not clear that the state-court decision rests solely on state law, the Supreme Court will presume that the state court relied to some extent on federal law and will review the case.

Exceptions and Limitations to Sovereign Immunity

Suits against State Officials The Eleventh Amendment does not bar suits against state officials in their official capacities, seeking declaratory or injunctive relief (as opposed to money damages) for violations of federal law. The theory behind this rule is that a state official who violates federal law acts outside the scope of his power and therefore is not immune from suit as an agent of the state. The Eleventh Amendment also does not prohibit suits for damages against state officials in their personal capacities for violations of federal law, although these suits may be subject to qualified immunities found in other sources of law Suits Against Local Governments The Eleventh Amendment does not bar suits against local governments such as counties and municipalities. That is, the protections of the Eleventh Amendment are limited to the states themselves and do not extend to lower levels of government. [Northern Ins. Co. of N.Y. v. Chatham Cty., 547 U.S. 189 (2006).] Bankruptcy and Congresstonal Abrogation of State Immunity Eleventh-Amendment immunity does not extend to bankruptcy-related matters, because the states are deemed to have consented to the exercise of federal bankruptcy powers against themselves in ratifying the Constitution. In addition, Congress has the power to set aside, or abrogate, the states' Eleventh-Amendment immunity when legislating under the Thirteenth, Fourteenth, or Fifteenth Amendments.

Appointment and Removal of Officials

The Appointments Clause authorizes the president to "nominate, and by and with the Advice and Consent of the Senate . . . Appoint ambassadors, . . . Judges of the Supreme Court, and all other Officers of the United States. . . ." [U.S. Const. art. II, § 2, cl. 2.] In providing for appointments, the Constitution distinguishes between socalled principal officers and inferior officers and provides for varying degrees of presidential authority over both appointment and removal.

Commander-in-Chief Clause

The Commander-in-Chief Clause provides that 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." [U.S. Const. art II, § 2, cl. 1.] Although Congress has the sole authority to declare war, the president may command the armed forces to defend the United States and may deploy the armed forces on a tactical basis to meet military, national-security, and foreign-affairs emergencies without congressional approval. The federal courts generally will not review the legality, wisdom, or propriety of presidential deployments of armed forces abroad to defend national interests. At least with statutory authorization, the president may also detain enemy combatants without formal charges or proceedings. The president also may establish military tribunals to try detainees outside of the federal court system with congressional authorization. However, detainees who are citizens of the United States must be afforded the basic protections of due process.

Economic Activity Substantially Affecting Interstate Commerce

The Commerce Clause allows Congress to regulate economic activity that has a substantial effect on interstate commerce, whether through a single instance of the activity or through the accumulation, or aggregation, of multiple instances. This has proven to be a very broad ground for legislation. The Supreme Court has not quantified what constitutes a substantial effect on commerce, but it has generally upheld the use of the commerce power if the regulated activity has some identifiable impact on commerce. The principle of aggregation has been important here. Under this principal, Congress may regulate an activity even if a single instance would have no discernible effect on commerce, provided that the accumulation of many instances would add up to a substantial effect. An ostensible limitation on the substantial-effects doctrine is that the regulated activity must be economic in nature. However, the Court has defined economic activity broadly to include not only commercial activity, but also the noncommercial production, consumption, or distribution of commodities.

Instrumentalities and Persons or Things in Interstate Commerce

The Commerce Clause allows Congress to regulate or protect the instrumentalities, or infrastructure, of interstate commerce. Congress also may regulate or protect persons or things as they move in interstate commerce. This power applies even if the threat to interstate commerce comes from activity that takes place only within the borders of a single state. Thus, Congress may regulate purely intrastate activity if it threatens to harm interstate commerce.

The Uses of the Channels of Interstate Commerce

The Commerce Clause allows Congress to regulate the uses of the channels of interstate commerce. This power allows Congress to prohibit the movement of specified goods through interstate commerce, regardless of Congress's motive for doing so. Congress also may legislate to prevent interstate commerce from being used for harmful or unlawful purposes.

Commerce Clause

The Commerce Clause grants Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." [U.S. Const. art. I, § 8, cl. 3 (emphasis added).] The most significant aspect of this clause is the power to regulate commerce "among the several states," also called interstate commerce. The Supreme Court has interpreted the Commerce Clause broadly to allow Congress to regulate the full range of interstate commercial activity, including: • the uses of the channels of interstate commerce; • the instrumentalities of interstate commerce, or persons or things moving in interstate commerce; and • economic activity that substantially affects interstate commerce, either singly or in the aggregate.

Congressional Limits on the Executive

The Constitution enables Congress to limit the executive branch in important ways. In areas in which Congress and the president share power, congressional authorization or disapproval of a particular action may limit the president's authority. In addition, Congress can impeach the president and other federal officers, thereby removing them from office.

Express Limitations on the Taxing Power

The Constitution includes several express limitations on the taxing power. Congress may not tax exports. Any federal taxes must be uniform throughout the United States, i.e., the same rules of federal taxation must apply throughout the nation. Finally, any direct taxes must be apportioned among the states. Direct taxes generally are those levied on individuals or their property, without regard to individual circumstances. Apportionment, broadly described, requires that the total direct taxes originating from each state must be proportionate to that state's population as compared to other states. Historically, the complicated details of both direct taxes and apportionment have kept direct taxes from becoming a significant source of federal revenue. The federal income tax, as authorized by the Sixteenth Amendment, need not be apportioned.

Federalism

The Constitution is based on a system of federalism, in which governmental power is distributed between the federal government on the one hand and the multiple state governments on the other. Just as the separation of powers creates checks and balances between the three branches of the federal government, federalism creates its own sets of checks and balances between the federal government and the states. The relationship between the federal and state governments includes federal limitations on state power, as well as intergovernmental immunities that protect the federal government from some interference by the states, and vice versa.

Legislative and The Treaty Power

The Treaty Power allows Congress, through the Necessary and Proper Clause, to pass legislation implementing a duly enacted treaty even if the subject matter of the treaty falls outside of Congress's other enumerated powers. Thus, for purposes of implementing a treaty, Congress may regulate areas otherwise forbidden to it. The Senate has additional authority over treaties, because any treaty entered by the president must be ratified by a two-thirds Senate vote before it is binding on the United States. [U.S. Const. art II, § 2, cl. 2.]

Removal Power

The Constitution is silent as to whether the president may remove federal officers. However, the Supreme Court has held that the president has the exclusive authority to remove federal officers, without congressional approval. Thus, in authorizing the appointment of an officer, Congress may not retain removal power for itself. In many cases, the president can remove officers at will. This is especially true for high-level principal officers such as Cabinet officials. However, Congress may sometimes impose conditions on the president's removal of officers, such as requiring good cause for removal. These conditions are most likely to be upheld if they apply to officers whom Congress intends to operate with some independence from the president, or to inferior officers who are appointed by someone other than the president. Nonetheless, Congress may not interfere with removal in a manner that excessively subverts the president's ability to control his subordinates and ensure that the laws are faithfully executed. Note: While Congress cannot remove federal officers under the Appointments Clause, it can remove federal officers through the impeachment process. [See Impeachment, infra.]

Adams v. Richardson

The Department of Health, Education, and Welfare, which is part of the Executive Branch, was sued for failing to withhold federal funds from public schools that segregated students based on race. The plaintiffs argued that the department had a legal duty to withhold the funds. In the applicable statute, Congress had imposed a mandatory enforcement duty and specific enforcement procedures on the department. Therefore, the department had to comply with the statute and pursue enforcement.

Fifteenth Amendment

The Fifteenth Amendment provides that the "right of citizens . . . to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." [U.S. Const. amend. XV (emphasis added).] Section 2, the Enabling or Enforcement Clause of the Fifteenth Amendment, authorizes Congress to enforce this provision by appropriate legislation. However, Section 2 only permits Congress to regulate federal or state governments, not private parties

Fourteenth Amendment (Congress)

The Fourteenth Amendment provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," and that no state shall "abridge the privileges or immunities of citizens of the United States" or deprive any person of the "due process of law" or "the equal protection of the laws." [U.S. Const. amend. XIV (emphasis added).] Section 5, the Enabling or Enforcement Clause of the Fourteenth Amendment, authorizes Congress to enforce these provisions by appropriate legislation. However, in doing so Congress may not expand or limit the substantive rights that are protected by the Fourteenth Amendment. Instead, Congress may only remedy, not define, a violation of the amendment. Additionally, because Section 1 of the Fourteenth Amendment only applies to "state action," Section 5 limits Congress to regulating state governments rather than federal actors or private parties

The Presentment Requirement and Presidential Vetoes

The Presentment Clause of Article I provides that Congress must present to the president "[e]very Bill which shall have passed the House of Representatives and the Senate . . . before it become[s] a Law." [U.S. Const. art. I, § 7, cl. 2.] Both houses of Congress must approve a bill before it is presented to the president. Thus, the process as a whole is referred to as bicameralism and presentment. Upon presentment, the president may either sign the bill into law or veto the bill by returning it to Congress without a signature. A veto may be overridden by a two-thirds vote of both houses of Congress. If Congress overrides a presidential veto, then the bill becomes a law without the president's signature. If the president fails to return a bill within ten days of presentment, the bill automatically becomes law. However, if Congress prevents a return by adjourning fewer than ten days after presentment, then the bill will not become law without the president's signature. This process is called a pocket veto. Congress has experimented with other kinds of vetoes, specifically line-item vetoes and legislative vetoes. However, both have been held unconstitutional.

Legislative Power and Public Lands

The Public Lands Clause gives Congress the authority "to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." [U.S. Const. art IV, § 3, cl. 2.] This clause also allows Congress to enact general legislation to govern federal property (including military installations and government buildings) and federal territories (including American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands). Congress's powers under the Public Lands Clause are not confined to the powers enumerated and implied in Article I. Instead, Congress has a general power to legislate free from those limits, much like the general authority of a state government. Thus, in this narrow context (along with Congress's power to govern the District of Columbia under Article I, Section 8, Clause 17) the federal government is said to have a general police power rather than the limited powers otherwise available to Congress

NLRB v. Noel Canning

The Senate said it was in recess but continued to hold pro forma sessions every three days. During this time, the president made what he described as recess appointments of three individuals to the National Labor Relations Board. However, because a pro forma session is not actually a recess, the appointments were invalid.

Spending Power

The Spending Clause gives Congress broad discretion to spend federal revenue, limited only by the requirement that the spending be related to promoting the general welfare of the nation. The Supreme Court generally will defer to Congress on the question of whether an instance of federal spending in fact promotes the general welfare. Congress's spending power may also be limited by other constitutional provisions, such as the prohibition on establishing religion. Nonetheless, as a practical matter, there are few constitutional limits on the spending power.

Zone-of-Interest Test

The Supreme Court at one time held that to have standing, a plaintiff must assert an injury that falls within the zone of interests protected or regulated by the law in question. However, the Court has since rejected the use of this test as an aspect of standing in statutory cases, holding that the zone-of-interests question is instead a matter of ordinary statutory interpretation to determine whether the plaintiff falls under the protections of the statute. It remains unclear to what extent the zone-of-interests test still applies in constitutional or other non-statutory cases

Treaties and Executive Agreements

The Treaty Clause provides that 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." [U.S. Const. art. II, § 2, cl. 2.] This means that (1) the president may enter into a treaty with a foreign nation, and (2) the treaty must then be ratified by a two-thirds Senate vote. The treaty may be self-executing (immediately enforceable) or non-self-executing (enforceable only after additional legislation or judicial action). Under current law, the president likely has the authority to unilaterally rescind a treaty without congressional approval. A treaty that violates some provision of the Constitution is unenforceable.

Take Care Clause

The Take Care Clause requires the president to "take Care that the Laws be faithfully executed." [U.S. Const. art. II, §3.] In broad terms, this means that the president is responsible for carrying out and enforcing federal law. To do so, the president may issue executive orders, which are presidential decrees that have the force of law. Although the president may use executive orders to carry out his constitutional authority or implement the laws passed by Congress, the president may not use executive orders to create law.

Taxing and Spending Clause

The Taxing and Spending Clause, sometimes called the General Welfare Clause, grants Congress the power "to lay and collect Taxes . . . to pay the Debts and provide for the . . . general Welfare of the United States." [U.S. Const. art. 1, § 8, cl. 1.] This clause expressly provides for a taxing power and implies that Congress also has a spending power. Although this clause uses the term general welfare, Congress does not have the power to do anything it likes to advance the general welfare of the nation. If Congress had a power like this, then Congress's powers would be virtually unlimited. Instead, the term general welfare has been interpreted to mean only that Congress may tax and spend for the general welfare. Put differently, the concept of general welfare in the Constitution is a limitation on the taxing and spending powers, not a license for Congress to exceed the scope of its enumerated or implied powers.

The Tenth Amendment

The Tenth Amendment provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." [U.S. Const. amend. X.] This amendment recognizes that state governments have power under their own constitutions to make all necessary laws to protect the general health, safety, and welfare of the persons and property within their jurisdictions. This broad power is sometimes called the police power. It is important to note that the federal government does not have this type of general police power except in places of exclusive federal jurisdiction, such as territories, military installations, and government property. Thus, in general, the federal government may exercise only those powers conferred on it by the Constitution.

Thirteenth Amendment (Congress)

The Thirteenth Amendment provides that "[n]either slavery nor involuntary servitude . . . shall exist within the United States." [U.S. Const. amend. XIII (emphasis added).] Section 2, known as the Enabling or Enforcement Clause of the Thirteenth Amendment, authorizes Congress to enforce this provision by appropriate legislation. Section 2 is not limited to government action and allows Congress to regulate both government actors and private parties. Congress may also define and prohibit the "badges and incidents of slavery" under the Thirteenth Amendment.

Power to Enforce the Thirteenth, Fourteenth, and Fifteenth Amendments (Congress)

The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution were enacted during the Reconstruction era following the Civil War and are collectively called the Reconstruction Amendments. These amendments contain substantive constraints on government, including the ban on slavery in the Thirteenth Amendment, the guarantee of equal protection in the Fourteenth Amendment, and the prohibition of race-based voting discrimination in the Fifteenth Amendment. In addition, the amendments give Congress express powers to enforce their substantive provisions "by appropriate legislation." [U.S. Const. amend. XIV, § 5.] Although other amendments include similar enforcement powers (including the Nineteenth, Twenty-Third, Twenty-Fourth, and Twenty-Sixth Amendments), the Reconstruction Amendments are the ones most often utilized by Congress as a basis for legislation. [See, e.g., Civil Rights Act of 1964, 78 Stat. 241 (1964) (enacted under the Fourteenth and Fifteenth Amendments).

Advisory Opinions

The case-or-controversy requirement can only be satisfied by an actual dispute between the parties. Thus, a federal court may not issue an advisory opinion, which is an abstract opinion on the validity of a law rendered in the absence of a concrete dispute. This prohibition reinforces the role of the judiciary as a forum for adjudicating disputes and prevents the federal courts from trespassing on the functions of the other branches of government by dispensing abstract legal advice.

Prudential Standing

The concept of prudential standing comes from judicially created limitations on standing that are not found in Article III. Thus, although the courts are bound by Article III's standing requirements, the courts may alter the prudential-standing requirements through adjudication. Historically, there have been three major rules of prudential standing: (1) the zone-of-interests test, (2) the rule against generalized grievances, and (3) the rule against third-party standing. Today, only the third of these retains much force as a prudential limitation.

Separation of Powers

The concept of separation of powers refers to the distribution of power among the three branches of the federal government. The Constitution establishes these three branches by vesting legislative power (Art. I) in Congress, executive power (Art. II) in the president, and judicial power (Art. III) in the Supreme Court and any lower federal courts created by Congress. The dispersal of government power among these three branches is designed to prevent any one branch from exercising an excessive amount of power. This system includes various checks and balances, by which each branch has some ability to restrain the other two. Although the judicial, legislative, and executive powers are theoretically distinct, there are times when they may intersect or overlap. Constitutional questions can arise when multiple branches compete for power in a situation in which the constitutional allocation of authority is unclear.

The Eleventh Amendment and State Sovereign Immunity

The concept of sovereign immunity provides, in part, that a state is immune from being sued by private parties without that state's consent. In the Constitution, this immunity is reflected in the Eleventh Amendment, which provides that federal judicial power "shall not be construed to extend to any suit . . . commenced or prosecuted against [a state] by Citizens of another State." [U.S. Const. amend. XI.] The Supreme Court has interpreted this language to prohibit federal jurisdiction over any suit for damages against a state by a private plaintiff without that state's consent, including suits by that state's own citizens. The Eleventh Amendment also generally bars private-plaintiff suits against a state in the state's own courts for violations of federal law

Mootness

The doctrine of mootness requires a plaintiff to bring a claim with practical significance that will affect the legal interests of adverse parties. Federal courts will dismiss a case for mootness if a favorable decision will no longer have an effect on the plaintiff. The mootness doctrine applies both in the trial courts and on appeal. However, a case will not be considered moot if (1) the defendant has merely voluntarily ceased the challenged conduct; (2) the issue is capable of repetition, yet evading review, i.e., it could recur periodically in a way that otherwise would not reach the courts; or (3) the plaintiff whose claim has become moot is a representative member in a class -action lawsuit.

Ripeness

The doctrine of ripeness has both constitutional and prudential aspects. Like standing, ripeness requires a plaintiff to bring a claim that presents an actual controversy and involves either a past injury or a threat of real and immediate injury. Federal courts generally will decline to adjudicate a speculative dispute over future events that are unlikely to develop, such as a claim based on the vague possibility of general harm or a challenge to a statute that has not yet been enforced. Ripeness may also involve consideration of whether future developments will provide a more concrete or otherwise more reliable basis for adjudication, e.g., enforcement of a statute or regulation as compared to the mere threat of future enforcement. In one useful formulation, the Supreme Court held that a case was ripe for adjudication because "we will be in no better position later than we are now" to decide the case.

Zivotofsky ex rel. Zivotofsky v. Kerry

The executive branch did not recognize a contested territory as being a part of the nation where it sits or of any other nation. Congress passed a statute requiring the state department to list the nation as the country of birth on both the department's own paperwork and on passports for U.S. citizens born in the contested territory. The statute was unconstitutional because it interfered with the president's exclusive power to recognize foreign nations and the scope of those nations' territory

The Nonprosecution Power

The federal law-enforcement apparatus, including federal prosecutors, falls under the president's executive authority. Implicit in the Take Care Clause is the principle that the president generally has the power to decline to prosecute offenses against the United States. This is sometimes called the nonprosecution power, and it represents an exercise of executive or prosecutorial discretion in deciding whether to charge someone with a crime. In general, this discretion is broad, and the courts are unlikely to interfere with an executive decision not to prosecute someone. However, the decision not to prosecute an individual is different from a presidential decision about whether, or to what extent, to enforce a law more generally. Presidents at times have asserted the power to enforce a law only to a limited extent, or not at all. This is sometimes called enforcement discretion, and it is both more limited and more controversial than the nonprosecution of individuals. The scope of a president's enforcement discretion may depend on whether the statute at issue is permissive or mandatory, that is, whether Congress has expressly required enforcement or has left some discretion to the president.

Nondelegation Doctrine

The first clause of Article I provides that "all legislative Powers herein granted shall be vested in a Congress of the United States. . . ." [U.S. Const. art. I, § 1, cl. 1.] Strictly speaking, Congress may not delegate any of its legislative power to another branch of the federal government, because the legislative, executive, and judicial powers are distinct and wholly lodged in each branch. However, Congress often authorizes the other branches to carry out activities that can be difficult to distinguish from legislating, such as administrative rulemaking and regulatory enforcement. The nondelegation doctrine is a theoretical limitation on congressional authorizations of this kind. Under this doctrine, Congress may authorize the executive or judicial branch to act in a certain area provided that Congress articulates an intelligible principle in the authorizing legislation to guide the other branch's activities.

Impeachment

The impeachment power enables Congress to remove the president and other federal officers from office for "Treason, Bribery, or other high Crimes and Misdemeanors." [U.S. Const. art II, § 4.] Article I provides that the House of Representatives has "the sole Power of Impeachment" and that the Senate has "the sole Power to try all Impeachments." [U.S. Const. art. I, § 2, cl. 5; U.S. Const. art. I, § 3, cl. 6.] This means that impeachment begins in the House of Representatives, which will debate the grounds for impeachment and pass a resolution of impeachment if it finds sufficient evidence. Afterward, the Senate will conduct a trial to try the impeachment (with the Vice President presiding, unless the impeachment is of the President, in which case the Chief Justice presides) and may render a conviction with a two-thirds vote. The penalty for impeachment is limited to removal from office and disqualification from future federal office. However, the person impeached may thereafter be subject to criminal prosecution for the same conduct. The impeachment power is broad, and a conviction by the Senate following the constitutionally prescribed procedures may not be reviewed in federal court.

Principal and Inferior Officers

The law of appointment and removal depends on whether a federal official is a principal officer or an inferior officer. While the Constitution does not clearly define who is a principal officer, the term has generally been used to describe anyone who is nominated by the president and confirmed by the Senate, such as ambassadors, cabinet officials, and federal judges. Inferior officers generally are those officers whose work is directed and supervised by principal officers. The Supreme Court has also used a four-factor test to identify inferior officers. An inferior officer is: - subject to removal by a higher executive-branch official; - empowered to perform only specific, limited duties; - vested with limited jurisdiction; and - given limited tenure.

The Political-Question Doctrine

The political-question doctrine limits justiciability to preserve the separation of powers in the federal government. Under this doctrine, federal courts will not decide any matter that has been committed by the Constitution to the executive or legislative branches or that lacks judicially manageable standards for decision.

Executive Privilege

The president has a qualified privilege to withhold confidential information during court proceedings or to refrain from producing information to Congress if the necessity of protecting the confidentiality of internal communications outweighs countervailing considerations. Because the privilege is qualified, information deemed confidential may be produced for inspection by a judge in his chambers (i.e., in camera) to determine whether some or all the documents should be produced. A claim of executive privilege to protect specific national-security or diplomatic secrets or to safeguard certain executive communications from exposure during a civil trial might be upheld. However, a generalized or blanket claim of confidentiality will not outweigh the compelling public interest in securing evidence for a criminal trial. The president's qualified privilege is derived from the Constitution, as an aspect of the president's effective discharge of his enumerated powers. Thus, Congress cannot limit the privilege through legislation.

Executive Immunity

The president has absolute immunity from civil suits for any action within the scope of his official duties taken while in office. However, the president might not have similar immunity from criminal prosecution. Moreover, the president is not immune from liability for his unofficial actions, such as actions taken before he assumed office. Executive officials who are subordinate to the president generally only have qualified immunity. Qualified immunity protects executive officials from lawsuits related to actions taken while in office that do not violate clearly established statutory or constitutional rights. Officials with qualified immunity may still be liable for certain torts, omissions, or other activities while in office.

Diplomacy

The president has the power to appoint and receive ambassadors and other foreign diplomats. Implicit in this power is the right to refuse to receive foreign ambassadors. This means that the president effectively has the authority to determine whether or not to recognize a foreign government, which is critically important under international law.

Domestic Affairs

The president has the power to execute federal law, appoint and remove federal officers, grant pardons and reprieves for federal crimes not involving impeachment, and recommend legislation to Congress.

Treaty and Foreign-Affairs Powers

The president is the representative and sole organ of the United States in foreign affairs. Thus, the president generally has significant authority and broad discretion over issues of foreign policy and international relations. This authority extends to diplomacy, command of the military, and cooperation with other nations through treaties and executive agreements.

Goldwater v. Carter

The president unilaterally rescinded a treaty with a foreign nation, prompting a challenge in federal court by members of the Senate. However, the issue was a nonjusticiable political dispute that should have been resolved by the president and Congress. The president's unilateral rescission was therefore not clearly unconstitutional.

Rule Against Third-Party Standing

The rule against so-called third-party standing remains part of the law of prudential standing. This rule provides that a plaintiff generally lacks standing to assert the rights of a third party. The theories behind this rule are that (1) potential plaintiffs should be allowed to decide for themselves whether to assert their rights, and (2) a party advocating her own interests is generally more likely to present a thorough case than a third party would. In rare instances, however, a plaintiff may sue on behalf of a third party if (1) there is such a close relationship between the plaintiff and the third party that the third party's rights are inextricably bound with the plaintiff's activity, and (2) there are genuine obstacles to the third party asserting her own rights, such as privacy concerns or fear of retaliation.

Standing on Appeal

The standing requirements apply to appeals as well as to cases in the trial courts. That is, a party must have standing to appeal an adverse decision just as it must have standing to bring suit initially. Because the state courts are not bound by the federal standing requirements, a party might seek Supreme Court review of a state-court case in which the appealing party would not have satisfied federal standing requirements at trial. In these types of cases, the adverse state judgment itself may suffice to provide the injury, causation, and redressability necessary to confer standing to appeal to the Supreme Court

Taxing Power

The taxing power authorizes Congress to raise revenue for the federal government through taxation. In General. The Supreme Court has interpreted the taxing power broadly. The courts will generally uphold a tax if it (1) produces some revenue and (2) does not function as a penalty. However, Congress may use the taxing power to incentivize or discourage behavior, e.g., by imposing a tax for doing or failing to do something. Taxes of this kind are sometimes called regulatory taxes, because they are designed to shape taxpayers' behavior. Under this power, Congress may tax activity that it cannot regulate directly under its other powers. Nonetheless, the Court has held that Congress may not levy taxes to punish taxpayers. The line between an incentive and a punishment is not always clear, but in general, taxes on illegal activities are more likely to be viewed as punitive, and therefore impermissible, than taxes related to lawful activity.

Judicial Review Definition

This process of determining constitutionality is known as judicial review and now applies to acts of the legislative and executive branches, as well as acts of the state governments.

The Shreveport Rate Cases

Three railway carriers challenged a federal law that barred the carriers from charging a lower rate for intrastate shipments than for interstate shipments. The law was intended to prevent the harm to interstate commerce that would result if users were deterred by higher rates from shipping goods between states. The law was upheld, because even though the lower rates were being charged only within a state's borders, Congress could regulate wholly intrastate activity to avoid harm to interstate commerce.

Lopez Test

To determine if Congress is acting constitutionally under the Commerce Clause the Court will examine: - Is the Congress Regulation Economic or Noneconomic Activity? - Is there a jurisdiction hook(limitation)? (We will only regulate the goods that go through interstate commerce) - Congressional findings in regard to substantial burden on interstate commerce. - Is the link to interstate commerce too attenuated in the aggregate to show interstate commerce?

Generalized Grievances

To have standing, the plaintiff must assert more than a generalized grievance shared by all citizens or, alternatively, by all members of a large class of citizens. A common type of generalized grievance is a case challenging some government action based on the plaintiff's claim that, as a taxpayer, he has a general interest in the proper conduct of the government. The courts generally hold that a complaint of this type does not confer standing because any injury is shared by all federal taxpayers and thus does not affect the plaintiff more than it affects anyone else. The generality of the grievance prevents the plaintiff from showing that he has suffered a unique or particularized injury. In a narrow exception to this principle, the Supreme Court has held that a taxpayer may sue to challenge a Congressional expenditure as a violation of the First Amendment's Establishment Clause, which prohibits a Congressional establishment of religion. However, this exception has generally been limited to its fact

Exceptions to the Dormant Commerce Clause

Two major exceptions to the Dormant Commerce Clause allow a state to regulate interstate commerce regardless of the strict-scrutiny and Pike balancing tests. First, a state may regulate interstate commerce in any manner if it has congressional approval to do so. Second, a state is not subject to the Dormant Commerce Clause if it is acting as a market participant instead of as a regulator.

Congress and Judicial Jurisdiction

Under Article III, Congress generally has the power to control the exercise of this jurisdiction by the various federal courts. In other words, Article III defines the full extent of federal judicial power, while leaving it largely to Congress to decide the extent to which the federal courts will actually exercise this power. Federal jurisdiction may also be limited by state sovereign immunity under the Eleventh Amendment. [See U.S. Const. art. III, § 2.]

Congressional Abrogation of State Sovereign Immunity

Under Section 5 of the Fourteenth Amendment, Congress has the power to set aside, or abrogate, the states' Eleventh Amendment immunity and authorize damages suits against the states in federal court. This is sometimes called the Congressional enforcement power. However, Congress may only exercise this power by expressing a clear intention to do so. Moreover, enforcement legislation is only valid if (1) it is directed at state conduct that violates a substantive prohibition of the Fourteenth Amendment, and (2) the remedy provided by Congress is both congruent and proportional to the harm addressed. The Supreme Court has not clearly defined congruence and proportionality, but as applied, the terms appear to mean that the statutory remedy must in some sense be tailored in its scope to match the size or severity of the problem that Congress seeks to address. Note: Congress's power to abrogate Eleventh Amendment immunity exists only under the Reconstruction Amendments. The Supreme Court has held that other sources of Congressional power, such as the Commerce Clause, do not allow Congress to abrogate state immunity.

Appointment Power

Under the Appointments Clause, the president alone appoints principal officers. More precisely, the president nominates principal officers, who must then be confirmed by a majority vote in the Senate. While the president may also appoint inferior officers, Congress has the authority to decide whether an inferior officer may be appointed by someone else: "[T]he Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." [U.S. Const. art. II, § 2, cl. 2.] Thus, depending on the will of Congress, an inferior officer might be appointed by the president, by the courts, or by the head of a department, e.g., a cabinetlevel official. The Appointments Clause also allows interbranch appointments, which are appointments by one branch of inferior officers in another branch. However, an interbranch appointment must not operate in a way that impairs the constitutional function of either branch involved. Nor may an interbranch appointment be incongruous, that is, at odds with the constitutional functions of the appointing branch.

Treaties and Executive Agreements versus Other Laws

Under the Supremacy Clause, which makes federal law superior to state law, both a treaty and an executive agreement will supersede an inconsistent state law. However, a treaty is on equal footing with other federal law, and when a treaty conflicts with a federal statute, the last one enacted will prevail. By contrast, an executive agreement will never prevail over a federal statute.

Preemption

Under the doctrine of preemption, valid federal law will always displace or supersede state law if one of three conditions exists: • if the federal law says that it has preemptive effect (express preemption); • if the federal law and the state law conflict (conflict or obstacle preemption); or • if the federal law has occupied the entire field of regulation, leaving no room for states to act (field preemption). Conflict and field preemption are sometimes referred to as two types of implied preemption, because they need not be based on an express declaration. Insofar as federal administrative regulations have the force of law, they are entitled to the same preemptive effect as federal statutes. This is sometimes called regulatory preemption.

The Scope and Limits of State Power

Under the federal scheme, the federal government is intended to have only those powers conferred by the Constitution, while all other government power is reserved to the states. State governments therefore have broad and general regulatory powers (usually recognized in each state's own constitution) that are protected by the Tenth Amendment. However, the states' authority is limited by the Supremacy Clause and the related doctrine of preemption, which sometimes enable the federal government to displace contrary state law. Finally, the Dormant Commerce Clause limits the states' ability to regulate interstate commerce.

Original and Appellate Jurisdiction

When exercising original jurisdiction, a court will try a case in the first instance and render a decision. The Supreme Court has original jurisdiction in (1) cases in which a state is a party and (2) cases involving ambassadors, public ministers, and consuls, i.e., diplomats. When exercising appellate jurisdiction, a court will conduct judicial review to overturn, modify, or affirm a decision made by a lower court or tribunal. In all other cases, the Supreme Court's jurisdiction is appellate. Today, the Supreme Court usually has the discretion to choose whether to hear an appeal by issuing a writ of certiorari accepting the case for review. In rare cases, however, the Supreme Court may be required to hear a mandatory appeal as of right. [See Certiorari, Black's Law Dictionary (10th ed. 2014); Jurisdiction, Black's Law Dictionary (10th ed. 2014).]

Intelligible Principle

`An intelligible principle is defined as a statement of congressional goals or purposes that will allow a determination of whether the other branch is carrying out the will of Congress. In other words, Congress must define the policy that it seeks to advance, the agency that is to carry it out, and the scope of the agency's authority. In this way, the theory goes, Congress does not truly delegate legislative powers but rather enlists the aid of the other branches in carrying out Congress's policies. An intelligible principle does not need to be elaborate or detailed. The Supreme Court has routinely upheld brief and general statements by Congress, such as a summary statement of purpose or a broad list of factors for the agency to consider. Consequently, the Court has almost never held a law to be unconstitutional under this doctrine, which generally does not present a significant barrier to legislation.