Con Law- Ch.'s 1-3

Review: Can you remember the three elements of constitutional standing?

'I': INJURY 'Can': CAUSATION 'Remember': REDRESSABILITY

Congress, after concluding that the states have lagged behind in educating school children to be tolerant towards homosexuals, enacts a program providing a small subsidy to any public elementary school that conducts a program teaching a better understanding of, and tolerance of, gay people. (a) Putting aside the commerce power, what constitutional provision best supplies constitutional authority for this statute? (b) A parent whose child is about to receive such instruction sues to have the provision found unconstitutional, on the grounds that it encourages homosexuality and thus detracts from the general welfare of the nation. Assuming that the federal court hearing the case concludes that the measure will probably make the nation worse off than it was before, will this constitutional attack on the statute succeed?

Answer: (a) The spending power. Art. I, Section 8 gives Congress power to "lay and collect Taxes ... to pay the Debts and provide for the ... general Welfare of the United States. ... " This language includes the "spending" power, although the word "spend" is not used. (b) No. It is true that the spending power of Art. 1, Section 8 is phrased specifically in terms of providing for the "general welfare" of the nation. However, the requirement that a federal spending program be for the "general welfare" has almost no bite at present — certainly, the Court is not entitled to substitute its own judgment of what would be "best" in lieu of Congress'.

In 1995, the Supreme Court for the first time in 60 years invalidated a statute as beyond the Commerce Clause power. U.S. v. Lopez, 514 U.S. 549 (1995). This decision indicates that the Supreme Court may be getting back into the business of reviewing congressional actions based on the Commerce Clause. Therefore, it's important to know the three broad categories of activities that Congress can constitutionally regulate, based on the modern view of the commerce power in light of Lopez. What are they?

Answer: 1. Channels: Congress can validly regulate use of the "channels" of interstate commerce (e.g., highways and waterways) even though a particular activity may occur wholly intrastate. 2. Instrumentalities: Congress can regulate the instrumentalities used in interstate commerce, even though the regulation affects a solely intrastate activity (e.g., Congress could mandate that every truck used in interstate commerce have a specific safety device, even though a particular truck is used only intrastate). This category refers to people, machines, and other "things" used in carrying out commerce. 3. "Substantially Affecting" Commerce: The biggest category of activities that can be regulated contains those activities that have a "substantial effect" on interstate commerce. The rule governing congressional regulation based on this category depends on whether the activity in question is commercial or non-commercial. 3A. Activity is commercial: If the activity itself is arguably commercial, then the "cumulative effect" theory of Wickard v. Filburn, 317 U.S. 111 (1942), applies; Congress can regulate an activity that as a class has a substantial effect on interstate commerce, even if the activity, taken alone, would not. 3B. Activity is non-commercial: Under U.S. v. Lopez, 514 U.S. 549 (1995), it now appears that if the activity is not commercial, then Congress can regulate only if there is a pretty obvious connection between the activity and interstate commerce. (Thus in Lopez, the relationship of guns in schools and commerce was found to be too weak a connection to satisfy this test. And in the later case of U.S. v. Morrison, 529 U.S. 598 (2000), the relationship between violence against women and interstate commerce was also too weak—for instance, the fact that some women fail to travel interstate or to work for interstate businesses because they fear violence was found to be too weak a connection to interstate commerce to qualify.) NOTE: It also now appears that the Supreme Court won't give much deference to the fact that Congress "believed" that the activity had the requisite "substantial effect" on interstate commerce. E Ch.4-IV(F); CH §3.3.5.

To be considered "interstate commerce," must an interstate activity be "commercial"?

Answer: Although the Court has permitted regulation of wheat raised and consumed on the farm where it was raised as interstate commerce (Wickard v. Filburn, 317 U.S. 111 (1942); E Ch.4-IV(C)(1)), in two recent cases, the Supreme Court has given significant weight to the fact that the activity Congress tried to regulate was not in itself a commercial activity. In U.S. v. Lopez, 514 U.S. 549 (1995) (involving congressional attempts to combat violence near schools) and in U.S. v. Morrison (2000) (congressional efforts to combat violence against women), the fact that Congress was regulating what the majority found to be "non-economic activity" contributed to the Court's conclusion that the legislation exceeded the scope of the commerce power. So now, it seems that the Court will scrutinize the appropriateness of Congress' reliance on its commerce powers somewhat more closely than where the regulated activity is itself truly "commercial." Nonetheless, in Gonzalez v. Raich, 545 U.S. 1 (2005), the Court upheld Congress' criminalization of intrastate possession of marijuana for medicinal purposes, signaling that Congress may regulate non-commercial activity as part of its broader regulation of commercial activity where Congress reasonably believes that the failure to regulate the non-commercial activity would jeopardize the overall regulatory scheme. Thus, the trend of whether the Court is narrowing or expanding Congress' commerce power is not clear cut. E Ch.4-IV(E).

Congress enacts a statute that apparently regulates a purely intrastate activity. How can this be a valid exercise of the Commerce Clause?

Answer: Congress can regulate purely intrastate activities when (1) the activities are "part of an economic class of activities" and (2) the activities have a substantial effect on interstate commerce. When considering whether the activities have a substantial effect on interstate commerce, the aggregate effect of the activities on interstate commerce can be taken into consideration. Gonzales v. Raich, 545 U.S. 1 (2005); E Ch.4-IV(E)(6); CH p. 272.

The Food and Drug Administration (FDA) has promulgated a regulation that requires prescription drug manufacturers to print the generic name of drugs on all labels and printed materials. One potential sanction for failure to comply with this regulation is criminal prosecution. Several drug manufacturers have filed suit against the FDA, seeking pre-enforcement review of the new regulation. They claim that the regulation is beyond the power delegated by Congress to the FDA. They further claim that enforcement will cause them to incur great expense in designing and printing new labels. Since the injury to the manufacturers is premised on future events—namely, enforcement of the regulation—their suit presents a potential ripeness problem, and the three factors listed above must be considered.

Answer: First, the probability that the predicted harm will take place appears great. The FDA is unlikely to promulgate such a regulation without an intent to enforce it; and, from the plaintiffs' allegations, it appears equally clear that the very existence of the regulation will have a significant, immediate economic impact on their businesses—they will undertake the cost of compliance to avoid the risk of criminal prosecution. Of course, in a real case we would want more facts on both of these points. Second, the hardship the plaintiffs derive from the dilemma they find themselves in: comply with an expensive and (according to them) illegal regulation or risk criminal prosecution. Finally, since the issue tendered is a purely legal question of statutory construction—does the FDA have authority to issue such a regulation?—the record requires no further factual development to permit a judicial resolution of the controversy. In short, the case is most likely ripe. See Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).

State T is divided into 25 legislative districts. Each district elects one representative to serve in the U.S. House of Representatives. There is a relatively large disparity between the populations of the various districts. For example, District One, which is located in a rural section of the state, has a population of 100,000, while District Seven, located in an urban area, has a population of 1 million. Voters from District Seven have filed suit in federal court claiming that the 10-1 disparity in district sizes dilutes the voting strength of voters living in District Seven. They claim that this disparate treatment violates the Equal Protection Clause of the Fourteenth Amendment. Does this claim present a political question?

Answer: First, this challenge to state action does not, on its face, raise separation of powers concerns, for the authority of the federal coordinate branches is simply not at issue. Yet separation of powers might be implicated to the extent it is claimed that Congress, rather than the federal judiciary, should oversee the manner by which states elect representatives to the House. Next, there would appear to be no clear textual constitutional commitment of the plaintiffs' equal protection claim to one of the coordinate branches. Although §5 of the Fourteenth Amendment clearly gives Congress the authority to enforce the provisions of the Fourteenth Amendment, it is well established that the Supreme Court has the final word over the meaning of the Fourteenth Amendment in cases pending before the Court. Similarly, while Article I, §4 gives Congress the authority to regulate the "times, places, and manner of holding elections for . . . Representatives," this clause could be read to address only the election itself rather than the geographic basis of districting. Thus, there is no clear or obvious textual commitment of this issue to Congress. The Court might go on, however, to consider some of the other factors we have mentioned. One could argue that there are no judicially discoverable standards for the enforcement of equal protection in the context of vote dilution. Certainly, that was true when the first such cases were brought; however, over the years the Court has developed a "one-person, one-vote" standard that can be applied without resort to a nonjudicial policy determination. In other words, equality is judicially measurable. Again it would appear that the issue presented is not a political question. See Baker v. Carr, 369 U.S. 186 (1962) (holding that a vote dilution challenge to legislative reapportionment does not present a political question). Compare Vieth v. Jubelirer, 541 U.S. 267 (2004) (statewide political gerrymandering claims alleging that a state's districts for the election of congressional representatives, though equally apportioned in terms of population, were drawn to give one political party an unfair advantage by diluting the opposition's voting strength, are nonjusticiable, four Justices invoking the political question doctrine and one Justice relying upon standing).

Congress, pursuant to its power to establish and regulate copyrights, has decided that there is far too much counterfeiting of copyrighted musical recordings. Therefore, Congress has passed a statute making it a felony, punishable by up to five years in prison, to give a "bootlegged" (i.e., not authorized by the copyright owner) CD or MP3 recording to any other person, even if it is the donor's neighbor or relative, and even though no compensation is charged. Dennis, charged with a violation of this statute, asserts that it is unconstitutional because it is beyond the scope of Congress' authority. Should the Court agree with Dennis' assertion, and why?

Answer: No, because the statute is valid under the "Necessary and Proper" Clause. McCulloch v. Maryland, 17 U.S. 316 (1819), establishes that when Congress is acting in pursuit of a constitutionally-specified objective, the means chosen merely has to be rationally related to the objective, not "necessary" to the objective's attainment. Here, Congress is exercising its enumerated power to regulate copyrights. Congress could rationally have believed that even non-profit-motivated transfers of copyright-violating recordings contribute to the general decline of copyright pro-tection, and that felony punishment for such transfers is a reasonable way of combatting the problem. The Court will show great deference to Congress' choice of the means to attain constitutionally-enumerated objectives, so the statute here will certainly be sustained.

Title II of the 1964 Civil Rights Act bans discrimination in places of public accommodation that serve interstate travelers or buy products if a substantial portion has moved in interstate commerce. Freddy Cobb owns a restaurant, Gloria's, in the State of Old Miss, and he refuses to serve African Americans. Freddy claims the Civil Rights Act is unconstitutional as applied to him, because his restaurant is far away from any interstate and no appreciable part of his business is made from interstate travelers. He does, however, purchase about half his products from a supplier that in turn bought from a wholesaler in another state. Will Freddy win?

Answer: No. Similar facts were present in Katzenbach v. McClung, 379 U.S. 294 (1964), in which the Court upheld the Act as applied to a small local restaurant. The Court reasoned that although the restaurant had a small effect on commerce, similar conduct taken in the aggregate would clearly affect interstate commerce. The Court also noted that although Congress made no specific findings of the impact that restaurant discrimination would have on commerce, a rational basis existed for the necessity of the regulation to protect interstate commerce. E Ch.4-IV(H). NOTE: Today the Court would analyze these facts under the Lopez test. It would be smart to emphasize the commercial nature of the restaurant—as opposed to the non-commercial nature of the guns in school zones—to survive constitutional scrutiny. E Ch.4-IV(H).

Is the Commerce Clause the same as the Dormant Commerce Clause?

Answer: No. The Commerce Clause is in the text of Article I, §8 and authorizes Congress to regulate interstate commerce. The Dormant Commerce Clause is the negative implication of the Commerce Clause: if Congress has power over interstate commerce, the states do not. State regulation of interstate commerce can be a violation of the Dormant Commerce Clause. E Ch.6-I(A).

Who were the five justices who voted to invalidate the Guns in School Zones Act in Lopez? Who were the four dissenters?

Answer: The majority was composed of Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas. The dissenters were Justices Stevens, Souter, Ginsburg, and Breyer. This 5-4 split was common in the Tenth Amendment and Eleventh Amendment cases about federalism. E Ch.4-IV(E).

Jeff, an African American, was pulled over by the city police in a routine traffic stop. One of the officers subjected Jeff to a "choke hold," which caused him to lose consciousness. Several months later, Jeff filed suit against the city seeking an injunction to prevent further use of the choke hold under similar circumstances. The facts establish that the city police use this maneuver frequently, particularly against African-American males, and under circumstances when the maneuver is completely unwarranted. The facts also establish that the choke-hold is dangerous, having caused 15 recent fatalities. The basis on which Jeff seeks an injunction is his fear that he will again be stopped by a city police officer who will illegally choke him into unconsciousness without any provocation or resistance on his part. Has Jeff satisfied the injury-in-fact requirement?

Answer: Under the current view, Jeff's claimed injury involves a well-recognized harm, but it may be factually too speculative to satisfy the injury-in-fact requirement. In a similar case, the Court explained, "There was no finding that [the plaintiff] faced a real and immediate threat of again being illegally choked." City of Los Angeles v. Lyons, 461 U.S. 95, 110 (1983). In essence, the Lyons Court insisted on a concrete factual showing that the plaintiff would likely be stopped by the police in the future, and that regardless of the circumstances surrounding the stop he would likely be subjected to a choke hold. This seeming rigidity was in part a product of the Court's perception that the circumstances of the case provided an inadequate basis upon which to invoke the equitable powers of the federal judiciary. The result would have been no different had Jeff's complaint sought damages as well as injunctive relief. Because standing must be separately established as to each form of relief sought, the fact that Jeff clearly had suffered a sufficient injury to give him standing to seek monetary relief would in no way alter the conclusion that he lacked standing to seek injunctive relief against a threatened future harm that was deemed too speculative.

A federal statute places restrictions on the extent to which private companies may be permitted by the U.S. government to engage in logging in national forests. Penzel, a private individual, sues the U.S. Secretary of the Interior. His suit contends that the Secretary has administered regulations on logging in a way that contravenes the statute. The suit contends that the effect will be to allow more logging in the forests than permitted by statute. Penzel asserts that he uses a particular national forest for a one-week hike twice per year, and that the unauthorized logging affects a part of the forest that he expects to hike in during the next year. At least four million hikers each year will cross through parts of federal forests that are likely to have been affected by the allegedly excessive logging. The Secretary asserts that Penzel lacks standing to make this claim. Does Penzel have standing?

Answer: Yes, probably. A federal-court plaintiff must show some concrete, "individuated," "injury in fact." But this harm need not be economic in nature; harms to a person's esthetic enjoyment of nature, for example, will suffice. See, e.g., Sierra Club v. Morton (giving people who use national forests standing to protest construction of recreation area in the national forest). The threatened harm must be "actual or imminent." Since Penzel asserts that he will walk within one of the affected areas within the next year, the "imminence" requirement is probably satisfied. The fact that there are a large number of people suffering or likely to suffer the same harm as alleged by the plaintiff does not by itself remove standing from the plaintiff.

The American Israel Public Affairs Committee (AIPAC) describes itself as an issue-oriented organization that seeks to promote goodwill between the United States and Israel. A group of voters (Voters) who are often opposed to the views of AIPAC filed a complaint with the Federal Election Commission (FEC) seeking to have AIPAC declared a "political committee" within the meaning of the Federal Election Campaign Act (FECA). The consequence of such a declaration would be that AIPAC would be required to make a public disclosure of the amount of any disbursement it made in support of any candidate for federal elective office. The Voters claim that this information would assist them in evaluating candidates who had received assistance from AIPAC and in determining the role that AIPAC contributions may play in any particular election. The FEC concluded that AIPAC was not a political committee and dismissed the claim. The Voters then filed suit in federal district court under a provision of FECA that grants any "party aggrieved" by an order of the FEC the right to file a petition in federal district court seeking review of that action. Can the Voters allege a sufficient injury to satisfy the injury-in-fact requirement?

Answer: Yes. The Voters claim that under FECA they are entitled to specific information regarding AIPAC's contributions to candidates for federal elective office. The injury to the Voters stems from their inability to obtain this information. Moreover, the information sought would be valuable to them because it would assist them in evaluating candidates who had received AIPAC support. In short, FECA creates a statutory right to certain information that would be useful to Voters, and if the facts are as Voters allege, the refusal by the FEC to declare AIPAC a political committee and to require disclosure operates as an injury to that right. See Federal Election Commission v. Aikens, 524 U.S. 11, 20-25 (1998).

Molly is an officer in the United States Army. Although she is assigned to an infantry unit, she has been excluded from combat duties solely because of her gender. She files suit in federal district court claiming that this gender-based exclusion violates her right to equal protection under the Due Process Clause of the Fifth Amendment. She seeks an injunction against enforcement of the policy. The district court rules against her, and she files an appeal. During the pendency of the appeal, Molly retires from the military with no possibility of returning to the service. Is her claim moot?

Answer: Yes. The change in facts eliminates the legal adversity between Molly and the United States Army. As a consequence, her claim is moot. The court of appeals will dismiss her appeal and remand the case to the district court with instructions to dismiss the action. See Arizonans for Official English v. Arizona, supra, 520 U.S. at 66-72; cf. Lozman v. City of Riviera Beach, 133 S. Ct. 735 (2013) (destruction of a houseboat that had been seized by the city and that was at the center of the controversy did not moot the case since the city had posted a bond to secure the value of the boat). Suppose, however, that Molly has not retired. Instead, Congress has adopted legislation eliminating all gender-based restrictions on combat duty and mandates that all female officers in the infantry be given priority in combat assignments if so requested. Molly is eligible for priority assignment to combat duty. Clearly, an injunction against enforcement of the prior policy would be without practical effect since that policy no longer exists. As a consequence, this change in the law renders the controversy between Molly and the United States Army moot. Again, the case must be dismissed.

Congress, alarmed about the dramatic rise in teenage pregnancies, passes the Underage Procreation Act of 2012. That Act requires any person under the age of 17 to obtain a federal permit before becoming pregnant. The permit is granted to any woman who shows that she has received one hour of counselling about the dangers of teen pregnancy from a state-licensed social worker. Violators are to be fined. A 16-year-old woman who wishes to become pregnant files suit to attack the statute's constitutionality on the grounds that it is beyond Congress' enumerated powers. The federal government defends the statute on the grounds that it is a proper exercise of Congress' power to regulate for the "general welfare." Will the plaintiff's attack on the statute succeed? (Ignore any issues relating to a woman's constitutional right to privacy or right to become pregnant. Assume that the Court decides that nothing in the activity being regulated affects interstate commerce.)

Answer: Yes. There is no federal "police power." That is, Congress does not have the right to regulate "for the general welfare." Congress' only powers regarding the general welfare are the right to tax and to spend to achieve that welfare. Since nothing in the statute provides for either a tax or an expenditure, the statute is not supported by the taxing and spending power or any other enumerated power. Normally, a federal regulatory scheme could be supported by the commerce power (since the Court takes an extremely expansive view of what activity can be found to "affect commerce"), but the facts tell us to ignore the commerce power here.

As part of its effort to improve postal services in rural communities, Congress has delegated to the U.S. Postal Service an authority to exercise the power of eminent domain to procure land for new and expanded post office facilities in those communities. The Constitution grants Congress the power to "establish Post Offices and post Roads." It does not, however, mention anything about a power of eminent domain. Does the congressional action represent an appropriate exercise of constitutional power?

Answer: Yes. Under the Necessary and Proper Clause, the power of eminent domain may be exercised as a means to ensure that the power to establish post offices can be exercised completely and effectively.

Congress makes it a federal felony for any individual to place a bet with another individual on a sporting event, or to propose such a bet. The statute is written broadly, so as to cover two friends who bet with each other primarily for purposes of friendship rather than profit. The House and Senate Committee Reports on the bill show that Congress believed that ostensibly "friendly" betting creates a climate that is tolerant of gambling, which in turn increases the interstate gambling profits of organized crime, a multi-million dollar nationwide problem. Devon is charged with violating the statute by placing a bet on the Super Bowl with her best friend, Elaine. They made the bet face to face within a single state. (a) If Devon challenges the constitutionality of the statute on the grounds that it goes beyond Congress' enumerated powers, what enumerated power should the prosecutors point to in defending the statute's constitutionality? (b) Is the statute in fact constitutional? State your reasons.

Answer: (a) Congress' power to regulate commerce. (b) Probably, but this is no longer as certain as it once was. Before the 1995 decision in U.S. v. Lopez, it was enough that there was a "rational basis" for Congress' belief that a regulated activity "affects" interstate commerce. But Lopez establishes that the activity which Congress is regulating must in fact have a "substantial effect" on interstate commerce. Where an activity is "commercial," the Court still seems willing to find regulation of it to be within Congress' commerce power even if the particular act is wholly intrastate, as long as the act is part of a class of activities which, collectively, substantially affect interstate commerce. See, e.g., Wickard v. Fil-burn (farmer's growing of wheat for family use only can be regulated, because the cumulative effect of all such intrastate wheat-growing decisions significantly affects the interstate price of wheat). The bet here seems to qualify — the bet is probably itself a "commercial" transaction (i.e., one primarily motivated by the desire to make a profit), and private bets taken as a group probably have a substantial effect on interstate commerce (e.g., they are often made over interstate phone lines, they contribute to the use of interstate "handicapping" services and interstate money transfers, etc.). Once the Court finds that the activity substantially affects commerce, the Court requires only that the means selected by Congress be "rationally related" to the objective being sought. Here, prohibition of the damaging activity — friendly sports betting — would certainly seem to be a reasonable means of combatting that activity. The scenario seems a lot like that in Gonzales v. Raich, where the Court held that Congress could regulate a purely intrastate but commercially-oriented activity regarding a commodity (personal cultivation of marijuana for one's own medicinal uses) because such regulation was reasonably tied in to Congress' regulation of the interstate commercial aspects of that same commodity.

When is a case moot?

Answer: A case becomes moot when the controversy is resolved after the case is filed, but before the outcome of the case has been decided. This can happen in a variety of ways: the law changes; the wrongful behavior in question has ended and couldn't reasonably be expected to recur; or a party has died or is no longer subject to the challenged statute (e.g., the statute covers minors and the party is no longer a minor). For a court to decide an issue, the issue can't be moot—i.e., it must be a controversy at all stages of review, not just when the complaint is filed. E Ch.16-IV(A); CH §2.7.1. N.B.: Certain types of cases are reviewable even if the issue appears to be moot, because they involve important constitutional issues. First, cases "capable of repetition yet evading review" are an exception to the mootness bar (these include pregnancy and election cases). Second, cases in which a defendant has voluntarily, but not permanently, changed his conduct will be heard (the controversy is temporarily, not permanently, resolved, and thus not really moot). Finally, even though a major issue in a case becomes moot, if there are collateral consequences to one of the parties the case itself isn't moot (because the parties would still have a concrete stake in the outcome of the case, albeit a diminished one; an example would be a civil rights claim against a law firm for failing to make a woman a partner; if she is allowed to become a partner at any time during the suit, she'd still have a back pay, "collateral" issue). E Ch.16-IV(B). NOTE: Mootness and ripeness are both essentially timing problems; a "moot" case is brought too late and an "unripe" case too soon.

To establish a "case and controversy" as required by Article III, §2, what must a claimant show?

Answer: A claimant must establish that the matter in controversy: Is definite and concrete; Touches the legal relations of parties having adverse legal interests; and Involves a real and substantial controversy capable of specific relief through a decree of a conclusive character. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). NOTE: The standing requirement is part of the "case or controversy" requirement, as is the prohibition against advisory opinions and unripe and moot claims. E Ch.16-II(A); NR p. 65.

Congress enacts a national marriage tax of $50 that must be paid whenever a couple is married. What enumerated power, if any, authorizes Congress to pass this tax?

Answer: According to Article I, §8, cl. 1, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises." The taxing power is a separate source of power from Congress' Spending and Commerce powers. E Ch.5-I(A)(1).

The State of Serenity enacts a statute that requires potato farmers to remove federal labels on potato bags and replace them with state-approved labels, which involves an additional expense to the farmer. One out-of-state grower, Farmer Johannes, challenges this as an invalid state regulation of interstate commerce. What result?

Answer: According to the Supremacy Clause, federal law will control, because the state law here directly conflicts with the federal law. McDermott v. Wisconsin, 228 U.S. 115 (1913). There is a direct conflict here, because one can't comply with both the federal and state regulations. Actual conflict cases are the clearest application of the Supremacy Clause. RELATED ISSUE: Say the state regulation required potato farmers to add a state label without replacing the federal label. Then there would be no direct conflict with federal law, because a farmer could comply with both federal and state requirements. Instead, the conflict would be indirect, and the validity of the state requirement would depend on whether Congress intended to preempt the entire potato-labeling field (and, beyond that, whether it unduly burdened interstate commerce, which it almost certainly wouldn't). NOTE: The area would be subject to federal regulation under the Commerce Clause, and subject to state regulation by virtue of state police powers. E Ch.6-III(B)(1); CH p. 409.

What was the Court-packing plan?

Answer: After the Court rejected his New Deal legislation, President Franklin Roosevelt proposed to appoint an additional judge for every Supreme Court justice over age 70 who had served at least ten years on the Court. There was great political uproar over the proposal and it was never enacted. On its own, however, the Court changed its limited reading of the Commerce Clause, ushering in a period of broad Commerce Clause power that lasted until 1995. E Ch.4-III(D).

Under what circumstances may Congress validly levy a tax?

Answer: Almost all circumstances, unless the tax is really a "disguised regulation" (i.e., one that achieves a regulatory effect that could not have been directly achieved by Congress). If a tax is found to be a disguised regulation, it will be struck down unless it falls under some other enumerated power. As long as the tax actually raises substantial revenue or Congress intended that it raise revenue, it won't be considered to be a disguised regulation. E Ch.5-I; NR pp. 230-231; CH pp. 276-278. NOTE: The "tax versus disguised regulation" issue isn't too important, because almost any tax statute could be sustained as a necessary and proper means of implementing the commerce power. NOTE: The following taxes are also probably valid: (1) a tax with regulatory provisions that bear a reasonable relation to its enforcement; and (2) a tax that regulates directly through its rate structure. E Ch.5-I(C).

What constitutional provision would justify an act of Congress not explicitly enumerated in the Constitution?

Answer: Article I, §8, cl. 18: Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States." This "Necessary and Proper" Clause allows Congress to take any legislative action that is rationally related to the carrying out of an objective that falls within an enumerated power. McCulloch v. Maryland, 17 U.S. 316 (1819); E Ch.3-II; CH pp. 239-241. NOTE: In addition, the federal government has certain inherent powers, neither enumerated nor implied by the Constitution, which instead are inherent in the concept of national government. The principal inherent power concerns foreign affairs. E Ch.3-I(C)(3); CH p. 281.

To cut the federal deficit, Congress decides to levy a tax on grain exported to other countries. On what basis could this tax be challenged?

Answer: Article I, §9 forbids Congress from taxing exports. That's all there is to it. E Ch.5-I(B)(3).

What does the Commerce Clause provide?

Answer: Basically, it gives Congress the right to regulate interstate and international commerce. Article I, §8, cl. 3 grants Congress the power "to regulate Commerce with foreign Nations, and among the several states . . ." RATIONALE: To eliminate "economic balkanization" and trade barriers among the states, so that a truly national economy is maintained. NOTE: The Commerce Clause acts both as (1) a source of congressional authority, and (2) as an implicit limitation on state power. E Ch.4-I; CH pp. 242-243. NOTE: Article I, §8 also gives Congress power to regulate commerce among American Indian tribes. E Ch.4-I(A).

What's the most common application of the Supremacy Clause?

Answer: Commerce Clause problems. In fact, the only time you use a commerce-clause analysis to decide the constitutionality of a state statute impacting interstate commerce is when there's no relevant federal legislation. If there is relevant federal legislation, then you analyze the problem under the Supremacy Clause. You ask three questions: Did Congress expressly authorize or prohibit state regulation (or does the Constitution expressly bar state action—e.g., coining money, conducting foreign affairs)? If so, that authorization or prohibition controls. If not, go on to #2. Is there a direct conflict between the federal and state regulation (e.g., joint compliance isn't possible, or the objectives conflict)? If so, federal law automatically preempts. If there's no direct conflict (i.e., the federal and state statutes merely cover the same subject matter), go on to #3. Was the federal law intended to occupy the entire field? If so, the federal law preempts the state law. If not, the state law stands. NOTE: Supreme Court cases indicate that Congress will be deemed to have preempted an area only where its intent is unmistakable, or where the nature of the regulated subject matter does not permit any other conclusion. Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963); E Ch.6-III(C).

Abbey Jones was convicted by a state court of second-degree murder and was sentenced to death under the state's death penalty statute. On appeal Jones argued that imposing the death penalty constitutes "cruel and unusual punishment," in violation of the state constitution and the Eighth and Fourteenth Amendments to the U.S. Constitution. The state supreme court ruled in Jones's favor, holding that imposing the death penalty violated both the state and federal constitutions. The state has petitioned the Supreme Court for review under 28 U.S.C. §1257. Is the state ground of decision adequate?

Answer: First, the state ground of decision fully sustains the result. Regardless of what is said about the Eighth and Fourteenth Amendments, under the state constitution Jones cannot be executed. And, since the state court has the last word as to the meaning of its own constitution, the Supreme Court cannot review the correctness of that ruling. Instead, the Supreme Court could reverse the state constitutional ruling only if it were invalid because it conflicted with the Constitution, laws, or treaties of the United States. That is not the case here. States are free to give people more rights under state law than they enjoy under federal law. While second-degree murderers may possess no federal right not to be put to death, the state may give them this right under its own constitution or laws. The state ground of decision is therefore adequate.

Congress passes the Child Labor Act, which prohibits the transportation in interstate commerce of any articles produced by companies employing children under 12 years old. Is the statute constitutional?

Answer: In 1918, no. In 1941, yes. The Court in Hammer v. Dagenhart, 247 U.S. 251 (1918), invalidated a similar statute on the grounds that the employment was not directly related to interstate commerce even though the articles traveled in interstate commerce. Hammer was overruled by U.S. v. Darby, 312 U.S. 100 (1941). The Court has identified different theories of the Commerce Clause at different stages of its history. E Ch.4-II(D)(3), IV(D).

Recall that in United States v. Lopez, the Court struck down the Gun-Free School Zones Act (GFSZA). Suppose that in response to that decision, Congress enacted the Gun-Free School Zones Tax Act (the Tax Act). The only difference between the Tax Act and the GFSZA is that instead of a criminal penalty, the Tax Act imposes a $10,000 tax on any person who possesses a firearm in a school zone. Suppose also that on facts similar to those presented in Lopez, an individual assessed with this tax challenges the constitutionality of the Tax Act. Assuming the Tax Act raises some revenue, is it a proper exercise of the power to tax? In other words, is the tax imposed penal or prohibitory and therefore a regulation rather than a true tax?

Answer: In a general sense, the Tax Act is quite similar to the Child Labor Tax Law. Both were adopted as attempted end runs around Supreme Court decisions striking down legislation under the Commerce Clause. Both also prescribe a particular course of conduct that must be followed to avoid the tax—don't bring guns into a school zone; don't employ children under certain specified conditions. The tax imposed by each, therefore, can be seen as a mechanism to enforce compliance with a regulatory scheme. The Tax Act, however, does not contain anything like the detailed regulations provided by the Child Labor Tax Law. Its complete focus is on a single act, namely, possession of a gun in a school zone. Perhaps this makes the Tax Act more like the National Firearms Act at issue in Sonzinsky, where the trigger of the law was also premised on a more general description of the taxable activity. Ultimately, whether this lack of detail is sufficient to distinguish the Tax Act from the Child Labor Tax Law depends on one's judgment as to the degree of deference due Congress. In the context of the commerce power, the Court has certainly suggested that total deference is no longer the appropriate standard. Yet how that judgment will be applied in the context of a tax case remains an open question. In short, the Tax Act is similar to the Child Labor Tax Law because it attempts to regulate local behavior through a tax and effects an end run around a Supreme Court decision, but dissimilar because it does not impose a "detailed" regulatory scheme with which one must comply to avoid the tax. The Tax Act also invites comparison with the tax struck down in Constantine. There, imposition of the tax was triggered by the taxpayer's criminal activity. Yet under the Tax Act, although possession of a firearm in a school zone may be criminal under state law, nothing in the federal act limits its application to possessions that are independently criminal. On the other hand, the size of the tax (like the tax in Constantine) is at least indicative of an intent to penalize rather than to generate revenue, and if one couples that with the fact that the tax is being imposed as an alternative to the criminal sanction struck down in Lopez, a reasonable case for application of Constantine might be made. Yet the Court's recent acknowledgment in Sebelius that the regulatory motive or effect of a revenue-raising measure usually plays little role in the analysis suggests that Constantine is unlikely to be controlling in this case.

What does "ripeness" mean?

Answer: It means that an issue presents an immediate threat of harm, rather than the injury being speculative and possibly never occurring. An issue must be "ripe" for a court to resolve it. E Ch.16-V(A); CH §2.6.1.

What does the Supremacy Clause do?

Answer: It provides that any state or local law conflicting with a valid federal law must be struck down. NOTE: The Supremacy Clause does not provide a source of power for the federal government!

Snow White, who is pregnant, seeks to challenge a state statute restricting the right to an abortion in the first trimester. By the time the case reaches the U.S. Supreme Court, Snow White is, surprisingly enough, no longer pregnant. Is the issue moot?

Answer: No. An issue is "moot" if the controversy has been resolved. Normally, a court will not decide a case if the issue has been resolved at any phase of review. However, one exception to the rule covers facts like those here—"capable of repetition yet evading review"—that is, where the action is likely to happen repeatedly, but will always avoid review due to the time required to litigate versus the time the action takes. In pregnancy cases, the time it takes to reach the Supreme Court would virtually always exceed the gestation period; thus, in such cases, the case will not be moot. Roe v. Wade, 410 U.S. 113 (1973); E Ch.16-IV(B)(1); CH §2.7.3.

The State of Sillycon enacts a statute regulating the marketing of high-tech instrumentation. Subsequently, Congress enacts a similar regulation wherein Congress provides that it intends the regulation to cover the whole field of high-tech instrumentation. Will the non-conflicting state law still be valid?

Answer: No. If Congress provides for regulation intended to cover the whole area in question, and the area is one in which both Congress and the states have power to regulate (e.g., commerce, with federal power coming from the Commerce Clause and state power from police powers), then the federal law supersedes the state law, regardless of whether the state law directly conflicts with the federal law. E Ch.6-III(C)(1); CH p. 393.

State of Warden is concerned that there are too many frivolous lawsuits by prisoners against state prison officials that are clogging the courts. In response to this problem, Warden sets up a special state Court of Claims that will hear civil rights cases against prison officials only. The Court of Claims is a court of limited jurisdiction where prisoners will not be allowed punitive damages or attorneys' fees. Cases against prison officials brought under the federal civil rights statutes will be heard exclusively in the Court of Claims. Is the State Court of Claims constitutional?

Answer: No. In a 5-4 vote in Haywood v. Drown, 129 S. Ct. 2108 (2009), Justice Stevens wrote that a similar court system violates the Supremacy Clause, Article VI, cl. 2, because the state's policy is "contrary to Congress' judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages . . . a State may not . . . relieve congestion in its courts by declaring a whole category of federal claims to be frivolous."

Does the Supremacy Clause state that the Supreme Court is supreme over the other branches in interpreting the Constitution?

Answer: No. The Supremacy Clause states that the Constitution and Laws of the United States are supreme over state laws. NOTE: In Cooper v. Aaron, 358 U.S. 1 (1958), the Court stated "the federal judiciary is supreme in the exposition of the law of the Constitution." E Ch.2-II(C)(1).

Congress has decided that breast implants, even of the less-dangerous saline variety, are undesirable. Congress has therefore placed a tax of $2,000 on any breast implant, to be paid by the surgeon at the time of implantation. The legislative history of the statute shows that Congress' principal purpose was to discourage the use of such implants, and that Congress did not believe the measure would produce very much revenue. In its first year, the Act produced collections of about $1 million. Doc, a surgeon specializing in implants, sues to have the statute declared unconstitutional on the grounds that it is beyond the powers of Congress. Is Doc's suit likely to succeed? If so, state why.

Answer: No. The fact that the principal purpose of a tax is regulatory rather than revenue-raising does not pose a constitutional problem today. So long as the tax produces at least non-trivial revenue, and does not run afoul of any explicit constitutional limitation on the taxing power (e.g., the prohibition on export duties in Art. I, Section 9), the tax will be found to be within Congress' general power to "lay and collect taxes. ... " Art. I, Section 8.

Congress passes a statute directing the Secretary of Transportation to withhold 5% of federal highway funds from states with a drinking age younger than 21. The purpose of the statute is to reduce the number of accidents created by young people driving between states to take advantage of lower drinking ages. The State of Wildwest challenges the statute, claiming it's an impermissible "string" on a federal grant. Is it? (Assume the Twenty-First Amendment would bar Congress from establishing a national minimum drinking age.)

Answer: No. The power Congress is exercising here is its general welfare power—that is, Congress may tax and spend for the general welfare. Incident to its power to spend, Congress may attach conditions to the receipt of federal funds, as long as: It does so unambiguously, allowing the states to exercise their choice knowingly (thus, the pressure cannot be so great as to be coercive); The condition is related to a national concern; and The condition is not independently barred by another constitutional provision—that is, the power may not be used to induce the states to engage in activities that would themselves be unconstitutional. Here there's no coercion, because only 5% of the state's highway funds are at risk; the concern here is safe interstate travel, which is a concern of general welfare. As to the third condition, a state drinking age of 21 wouldn't violate anyone's constitutional rights. Thus, the condition is valid. South Dakota v. Dole, 483 U.S. 203 (1987). NOTE: The South Dakota case assumed the Twenty-First Amendment would bar a national minimum drinking age, but didn't decide the issue. Note that this means through its spending power Congress may indirectly accomplish things it couldn't do directly (e.g., establish a nationwide minimum drinking age). E Ch.5-II(B)(5)(a); CH p. 274. NOTE: If Congress, through the conditional spending power, induced the states to pass laws that would themselves violate constitutional rights of individuals, those congressional actions would be unconstitutional. CH pp. 280-281.

Employees of the United States Forest Service (USFS) are required to live in houses owned by the USFS and located within national forests. The housing is considered a part of the employees' compensation and the government deducts a specified amount from the each employee's salary as "rent" for the housing. The county of Fresno, consistent with the principles of federal tax immunity, does not impose its general property tax on national forest land within the county since the legal incidence of such a tax would fall on the United States itself as the property owner. However, the county does impose an annual use tax on possessory interests in tax-exempt land, including the possessory interests of the USFS employees. Does the use tax as applied to USFS employees violate the principle of federal immunity from state taxation?

Answer: No. While a state or a subdivision of a state may not impose a tax on the property of the federal government, it may impose a use tax on private persons who are granted the possession or use of that property. This is so because unlike a property tax imposed on federally owned property, the legal incidence of the use tax falls on the person using the property rather than on the federal government. In the immediate case, the legal incidence of the use tax falls on the USFS employees. The principle of federal immunity, therefore, is not violated. Nor is this tax discriminatory even though it only applies to renters of tax-exempt property. Since the county does impose its general property tax on nonexempt property, the practical effect of the use tax is to place all renters of property on an equal economic footing, for owners of nonexempt property can be expected to pass the economic burden of the tax on to their lessees. See United States v. County of Fresno, 429 U.S. 452, 464-468 (1977) (same conclusion under similar facts).

Congress enacts a national marriage tax of $10,000 that must be paid whenever a couple is married. Some members of Congress explained that they supported the tax because they thought individuals married without sufficient preparation and they wanted to encourage couples to wait and think over the obligations of marriage before taking their vows. Is the marriage tax constitutional?

Answer: Not if it is clear that Congress is trying to dissuade marriage rather than to collect taxes. If the tax is a "disguised regulation" it may be declared unconstitutional. E Ch.5-I(A)(1). NOTE: Courts are likely to sustain regulatory taxes if Congress would have the authority under another enumerated power like the Commerce Clause to pass the legislation. E Ch.5-I(C). N.B.: If a tax produces substantial revenue it is more likely to be upheld even if it has regulatory aspects. E Ch.5-I(C).

Does Congress' "general welfare" power give it the power to enact any legislation necessary for the "general welfare" of the nation?

Answer: No—it's considerably narrower than that. Congress' "general welfare" power refers solely to the power to provide for the general welfare by imposing taxes (e.g., Social Security tax) and spending money. E Ch.5-II(B)(4); CH §§3, 4. NOTE: Such taxing and spending must be done for the general welfare; thus, for instance, Congress couldn't levy a tax on the sale of gasoline nationwide and give the proceeds to a single oil company to help it find ways to increase its profitability. NOTE: Congress could use its spending power to achieve indirectly objectives it couldn't achieve directly pursuant to its regulatory power, as long as doing so isn't coercive or doesn't violate an independent constitutional limitation (like the Bill of Rights). So Congress may spend and tax for the general welfare, but it has no power to regulate to provide for the general welfare. To regulate, Congress must be acting pursuant to some enumerated power (e.g., the Commerce Clause). E Ch.5-II(B)(4).

Under what circumstances will a party have standing to vindicate someone else's rights (i.e., third-party standing)?

Answer: Only where the plaintiff has suffered direct injury as a result of the third party's constitutional or federal rights being violated, and only if: The third party may not be able to vindicate her own rights; and There is a special relationship between the plaintiff and the third party. E Ch.16-III(D). NOTE: One type of third-party standing is the standing of a state to sue another state on behalf of its citizens as parens patriae, to protect its citizens' comfort, health, and property rights (including environmental damage cases). Note that this covers suits against other states, not the federal government. CNR pp. 53-54. NOTE: An association will have standing on behalf of its members if the following three requirements are satisfied: The members would have standing; The interests the association seeks to protect relate to the association's purpose; and Neither the claim itself nor the relief requested require the individual participation of association members. Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333 (1977); E Ch.16-III(C)(3)(c).

State X law requires that all state X candidates for the United States House of Representatives must reside in the congressional district they seek to represent in Congress at the time they are elected. Is this law constitutional?

Answer: Probably not. According to the Court's decision in U.S. Term Limits, Inc. v. Thornton, supra, Art. I, §2, cl. 2 of the Constitution establishes the exclusive qualifications for membership in the House of Representatives: "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen." Since Art. I, §2, cl. 2 does not mention a district residency requirement, a state may not impose one. See Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) (under Qualifications Clause, state may not require candidates for House of Representatives to be residents of state prior to date of the election); Campbell v. Davidson, 233 F.3d 1229 (10th Cir. 2000), cert. denied, 532 U.S. 973 (2001) (state may not require candidates for House of Representatives to reside in the particular district in which they seek election); Schaefer v. Townsend, 215 F.3d 1031 (9th Cir. 2000), cert. denied, 532 U.S. 904 (2001) (under Qualifications Clause state may not require candidates for House of Representatives to be a resident of the state at the time of filing nomination papers as distinguished from the date of election).

New research into nutrition uncovers the fact that a diet consisting primarily of beef jerky and beer will result in a long and healthy life. As a result, the cattle industry enjoys a renaissance, coupled with acute fluctuations in the supply and price of beef jerky. To remedy this, a new federal law prohibits ranchers from producing any more beef jerky than they did in the previous year, and if they go beyond this limit, they will be taxed at $10/lb. on the excess yield (the average selling price being $15/lb.). The tax is enforced and collected by the Agriculture Department. "Chew" Baker, a rancher, produces 200 lbs. of jerky this year, 50 lbs. more than last year, exclusively for his own use. He challenges the tax. Assuming the regulation is beyond the scope of the Commerce Clause, is the tax constitutional?

Answer: Probably, even though the facts indicate that it's intended to be a regulation, not a revenue raiser. The regulation purpose is indicated by the fact that it is the Agriculture Department that is collecting and enforcing the tax, instead of the Treasury Department, which usually performs this function, and also by the extremely high level of the tax, which will significantly increase the price of the product. When Congress taxes beyond its power to regulate, the tax is constitutional only if Congress intended that the tax raise revenue, or if it actually raises revenue. Here, the tax does raise revenue, so it's constitutional, even though it has a regulatory effect (in that it will dissuade some farmers from producing beef jerky). E Ch.5-I(C); CNR pp. 112-113. RELATED ISSUE: In fact, due to the breadth of the Commerce Clause, Congress probably would be able to regulate Baker's beef jerky production directly. E Ch.4-IV(C)(1); CH pp. 271-272.

The Violence Against Women Act (VAWA) creates a federal cause of action against any person who commits a crime of violence motivated by the gender of the victim. Included within this category are such crimes as rape and spousal abuse. In essence, VAWA gives the victim of such a crime a federal civil rights cause of action against the perpetrator. The act was passed pursuant to the Commerce Clause on findings that violence against women imposes severe and substantial economic costs to society including, but not limited to, costs incurred from hospitalization, rehabilitation, and lost productivity. The Senate report accompanying the act specifically found: "Gender-based crimes and fear of gender-based crimes restricts movement, reduces employment opportunities, increases health expenditures, and reduces consumer spending, all of which affect interstate commerce and the national economy." Is VAWA constitutional as an exercise of the commerce power under Lopez and Gonzales?

Answer: Since VAWA is not a regulation of either the channels or the instrumentalities of interstate commerce, the specific question is whether gender-based violence, as defined by the act, substantially affects interstate commerce. But before answering that question we must first determine if gender-based violence is properly characterized as economic activity or if its regulation is part of a more comprehensive regulatory scheme directed at economic activity. Quite likely the answer to both preliminary inquiries is no. Gender-based violence is not commonly understood as economic activity. Nor would gender-based violence satisfy the Gonzales Court's broader definition of economic activity as including the "production, distribution, and consumption of commodities." 545 U.S. at 18. It also does not seem that this regulation is part of any larger economic regulatory scheme. Rather, it is quite simply a civil remedy directed at a particular type of reprehensible but noneconomic behavior, and as such is similar to the gun possession prohibition at issue in Lopez. If the "economic activity" element of Lopez is a constitutional prerequisite to the exercise of the commerce power, VAWA does not represent an appropriate exercise of that power. If, on the other hand, "economic activity" is merely one factor to consider in the application of the "substantially affects" test, then we must proceed to examine the sufficiency of the relationship between gender-based violence and interstate commerce, albeit with the recognition that the activity being regulated does not fall within the sphere of activities generally thought to come within the ambit of the commerce power. Does gender-based violence substantially affect interstate commerce? One can certainly construct an argument that it does. Given the statistical prevalence of such violence (millions of such crimes are reported each year), there can be little doubt that, collectively, gender-based violence generates enormous economic costs to society, and at some point these costs are reflected in the interstate market in goods and services. The quoted findings by Congress would seem to be at least rational in this regard. Moreover, the connection with interstate commerce under VAWA is at least as substantial as the connection upheld by the Court in Wickard v. Filburn, supra, where consumption of wheat on farms was deemed sufficiently related to interstate commerce to trigger the commerce power. (Wickard is the case on which Example 5-D is based.) But Lopez strongly suggests that the economic consequences of this "noneconomic" behavior are too tenuous to establish a "substantial" link with interstate commerce. First, the fact that the regulated activity is noneconomic weighs heavily against validation of the act under the "substantially affects" test. Next, aside from the noneconomic nature of the regulated activity, to uphold VAWA, one arguably "would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Lopez, 514 U.S. at 567.

When does a plaintiff have standing to pursue a claim in federal court?

Answer: Standing requires that the plaintiff establish: INJURY: plaintiff has a concrete injury that is actual or imminent; CAUSATION: the injury is traceable to the defendant's conduct; and REDRESSABILITY: the injury can be redressed by the federal court (e.g., by striking down the offending statute). Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). As a general matter, look to see if the claimant in question has a personal stake in the outcome of the case. NATURE OF INJURY REQUIRED: It can be economic, aesthetic, environmental, recreational, or reflect a "spiritual stake" in the First Amendment rights of free exercise and establishment. In addition, it must not be so indeterminate or diluted that its impact on the plaintiff is no different from the injury to citizens at large. Such a widespread injury is called a "generalized grievance" and is not heard by the courts. EXCEPTIONS: There are several exceptions to the general standing requirements. The most significant ones include third-party standing, taxpayer standing, and congressionally created standing, which we'll discuss in more detail on other cards. NOTE: As a practical matter, the Court uses standing as a tool for avoiding deciding certain cases on the merits. E Ch.16-III(A)(1)-(6); CH §2.5.1.

In 1994 Congress enacted the Drivers' Privacy Protection Act (DPPA). The DPPA regulates the disclosure and resale of personal information contained in the records of state motor vehicle departments (DMVs). Congress adopted the measure after finding that many states were selling this information to individuals and businesses who then used it to contact drivers for marketing purposes. The DPPA prohibits DMVs from disclosing this information without a driver's consent unless the disclosure falls within one of the act's enumerated exceptions. Those who receive information from a DMV pursuant to one of the statutory exceptions are likewise subject to strict regulation concerning their resale or redisclosure of the information. Is the DPPA a proper exercise of Congress's commerce power?

Answer: The DPPA might be justified under two different aspects of the commerce power. See §5.3. First, the act might be viewed as a valid regulation of the channels of interstate commerce to the extent that it prohibits a particular good or thing—i.e., state-collected information about drivers—from being sold or released into the stream of interstate commerce (except under limited conditions). Yet while such information is an article of commerce if used for commercial purposes, the DPPA prohibits all releases of such information, not just those releases that are destined for interstate commerce. In theory, at least, a DMV might release information about a particular driver to someone intending to use it exclusively in that state. Alternatively, the DPPA might be defended on the ground that it regulates an economic activity—the sale of state-collected drivers' information—that is substantially related to or substantially affects interstate commerce. Under this approach, Congress may use the Necessary and Proper Clause to regulate the entire class of activity, even though not all of the information sold or disclosed by a DMV will necessarily find its way into interstate commerce. See Reno v. Condon, 528 U.S. 141 (2000) (upholding the DPPA as being a valid regulation of the channels or stream of interstate commerce without discussing whether it might also be sustained under the Necessary and Proper Clause). See also Pierce County v. Guillen, 537 U.S. 129 (2003) (federally created discovery privilege for information compiled and collected by state agencies participating in a federal highway safety program represents permissible exercise of the commerce power).

What provisions of the Constitution provide Congress with the power to enforce constitutional rights?

Answer: The Necessary and Proper Clause and the Enabling Clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments. E Ch.5-IV(B)(7), Ch.13; CH p. 288.

What clause of the Constitution did Justice Scalia rely on in his concurrence in the marijuana case, Gonzales v. Raich, 545 U.S. 1 (2005), in ruling that Congress has the power to regulate home-grown, intrastate medical marijuana?

Answer: The Necessary and Proper Clause, Article I, §8, cl. 18. Justice Scalia wrote that Congress can regulate intrastate activity that does not substantially affect interstate commerce if "that regulation is a necessary part of a more general regulation of interstate commerce." Congress could conclude that regulating local marijuana was necessary to the enforcement of the drug laws. NOTE: Congress has authority to pass the Controlled Substances Act because drugs are bought and sold in interstate commerce.

The Produce Marketing Act (PMA) is a federal statute that regulates the "marketing" of farm produce throughout the United States. Marketing is defined to include the selling of produce grown on the farm as well as the consumption of produce before it leaves the farm. The act limits the amount of produce that may be grown on a farm regardless of whether the produce is sold or is instead consumed there. Filbert owns a small dairy farm in Alabama. Each year he grows a winter crop of wheat, some of which he sells and some of which he keeps for his own consumption on the farm. Under the act, Filbert is permitted to sow no more than 11 acres of wheat; in violation of the act, however, he sowed 20 acres of wheat. He intends to keep the entire excess for consumption on the farm. Nonetheless, under the act, he must pay a substantial penalty for having grown the excess wheat. Under the commerce power, may Congress regulate the production and consumption of wheat on Filbert's farm?

Answer: The PMA is not a regulation of interstate commerce. Farming, like manufacturing, is not itself commerce; rather, farming is production, an activity that is at best antecedent to commerce. Nor is the activity in any fashion "interstate." However, growing wheat even if exclusively for home consumption might still be fairly characterized as involving "economic" activity, for it does involve the production and use of a form of wealth. Moreover, as was true with strip mining, farming does substantially affect interstate commerce, and despite the relatively limited farming engaged in by Filbert, Filbert is a member of a group whose activities as a class substantially affect interstate commerce. Under the class of activities rationale or so-called aggregation principle, Congress could rationally conclude that the collective consumption of "excess" wheat on farms has a substantial impact on the interstate market for wheat; Filbert's small contribution to this impact is enough to bring his activity within the regulated whole. If a large number of farmers grow excess wheat and consume that wheat on the farm, they will deliver their entire authorized allotment of wheat to the market (since they won't need to save any), thus potentially glutting the market and driving prices down. Similarly, farmers who store excess wheat will have no need to resort to the market for the purchase of wheat, again driving the prices down. See Wickard v. Filburn, 317 U.S. 111 (1942) (applying a similar analysis under similar facts).

A state law directly contravenes a statute enacted by Congress. What clause in the Constitution would provide the answer for which of the two will remain valid?

Answer: The Supremacy Clause of Article VI. That clause states that: "This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land." In such cases, the state law is preempted by the federal law. NOTE: Most problems with the Supremacy Clause come about when there's no direct conflict between state and federal law; and the two merely address the same subject matter in different (but not explicitly inconsistent) ways. A direct conflict exists where one can't comply with both federal and state regulations, or the objectives of the two conflict. NOTE: Most Supremacy Clause problems involve the Commerce Clause. E Ch.6-III(A)(1).

The Aid to Families Act (AFA) is a federal statute that provides food stamps to families with a demonstrated need for welfare assistance. Under the AFA as originally enacted, a single mother with demonstrated need and one dependent child was entitled to a monthly allotment of $250 in food stamps. An incremental increase of $50 in food stamps was provided for each additional child. As part of a welfare reform package, however, Congress amended the AFA to provide that any single mother receiving food stamps under the act who has two or more dependent children and who bears an additional child will, instead of receiving an increase in benefits, lose half of the AFA benefits for which she was previously eligible. This means that a single mother of two would have her $300 monthly allotment reduced to $150 on the birth of a third child. Can this measure be validated as an exercise of the spending power?

Answer: The provision of food stamps certainly involves an expenditure of federal money, and Congress could reasonably conclude that providing food stamps to needy families advances the general welfare of the nation. The amendment, however, may well be coercive and therefore valid only if it comes within the regulatory powers of Congress. Because food stamps are distributed on the basis of need, it would seem that this drastic cut in benefits, both in design and operation, coerces indigent single mothers into compliance with what can be fairly characterized as a federal regulation of family size and family living arrangements. In essence, the "power of choice" to determine both the size of her family and which of her children will live with her as dependents, is taken from the single mother just as the "power of choice" was taken from the farmers who were financially coerced into compliance with the congressional crop reduction plan in Butler. Either you comply with the federal plan or you will be subjected to severe economic consequences. (Consider whether the coercive spending label would attach had the AFA amendment merely provided that birth of an additional child would generate no increase in the family's food stamp allotment.) Assuming the AFA amendment is coercive, can it be validated under the Commerce Clause? In other words, could Congress pursuant to the commerce power regulate the size of "welfare" families? Probably not. Bearing children, although fraught with economic ramifications, is not commonly understood as economic activity. Given United States v. Lopez and United States v. Morrison, this in itself may preclude reliance on the commerce power. But even if such noneconomic activity can be regulated under the commerce power, given the further reasoning in Lopez, the government would face a difficult task in establishing that welfare family size "substantially affects" interstate commerce. Presumably the government's argument would be premised on a causal chain that begins with welfare family size and ends with interstate commerce: Increased family size leads to a lack of discipline, which leads to poor education, which leads to unemployment and economic dislocation, which may lead to crime, which affects local businesses, which ultimately affects interstate businesses, etc., etc. Yet it was precisely this type of "inference piled upon inference" that the Court rejected in Lopez. Thus despite the demise of the enclave theory, United States v. Butler when coupled with Lopez and Morrison may, under limited circumstances, provide an effective basis for challenging the constitutionality of purported spending measures. Note that this hypothetical provision may also violate principles of substantive due process because of its infringement on a mother's liberty interests in bearing children and in her family living arrangements. See Allan Ides, Christopher N. May & Simona Grossi, Constitutional Law: Individual Rights §2.5.2 (7th ed. 2016).

The Age Discrimination in Employment Act (ADEA) prohibits covered employers from discriminating against their employees on the basis of age. The act defines "employer" as "a person engaged in an industry affecting interstate commerce who has 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." The Best Seller is a family-owned bookstore located in central Texas. Its primary business is the sale of current titles, especially those on the New York Times bestseller list. The store does a large volume of business, and has employed over 20 people on each working day for the past several years. A recently dismissed employee of the Best Seller has filed a claim against the company under the ADEA. Can the ADEA be constitutionally applied to the employment practices of the Best Seller?

Answer: The sale of current titles surely involves books that have recently moved in interstate commerce, as well as orders that have been placed through interstate channels. Given these facts, it would seem that the Best Seller is engaged in an industry "affecting interstate commerce." The statutory jurisdictional nexus is, therefore, satisfied. In addition, given these facts, one could say that the business of the Best Seller affects interstate commerce, and that when viewed collectively with the activities of other similar businesses, the aggregate effect is substantial. But this does not answer our constitutional question. Notice that in both Heart of Atlanta and Katzenbach, the question was not simply whether motels or restaurants affected interstate commerce, but, more precisely, whether the practice of racial discrimination by such businesses affected interstate commerce. The inquiry here, therefore, must focus on the particular activity being regulated, namely, the practice of age discrimination in employment. Does this practice, when engaged in by an industry affecting commerce, substantially affect interstate commerce? The answer to that question requires an economic assessment of the consequences of age discrimination. If one could reasonably conclude that such discrimination causes a decrease in spending by the protected group or has a "depressant effect" on the overall economy, particularly when engaged in by an industry affecting interstate commerce, then the ADEA is constitutional and can be applied to the business practices of the Best Seller. This is essentially the reasoning followed by the Court in Katzenbach. Moreover, given the generally deferential approach applied where, as here, the regulated activity is economic and commercial in nature, it is likely that the Court would uphold such a "presumed" determination by Congress even in the absence of specific findings.

Suppose that at his criminal trial in state court, Charles requested the judge to admonish the jury that no adverse inference could be drawn from Charles's failure to take the witness stand. The U.S. Supreme Court has held that if requested, such an instruction must be given to protect a defendant's Fifth and Fourteenth Amendment right to remain silent. However, the trial judge failed to so instruct the jury and Charles was convicted. The state supreme court affirmed, ruling that by requesting an "admonition" rather than an "instruction," Charles had failed to comply with required state procedures. Does the state court decision rest on an adequate state ground so as to preclude Supreme Court review?

Answer: The state procedural rule requiring that defendants request the judge to deliver desired instructions does not itself violate the Due Process Clause or any other constitutional provision. However, a good argument can be made that no legitimate state interest is served by insisting that such requests be made through the use of specific magic words. Alternatively, Charles might be able to show that the state has not applied the rule on a consistent basis because in other cases judges have given the desired instructions even though a defendant asked only for an "admonition." Or, Charles might demonstrate that he had good cause for failing to follow the state rule since the distinction between "admonitions" and "instructions" is highly ambiguous and difficult to comply with; if the Court also agreed that Charles was prejudiced by the judge's failure to give the requested instruction, the state decision would not rest on an adequate procedural ground. See James v. Kentucky, 466 U.S. 341 (1984).

The 2010 Affordable Care Act significantly expanded the federal Medicaid program under which federal funds are given to the states on the condition that they provide specified medical care to the needy. The earlier Medicaid program required coverage only for certain categories of needy individuals, with no mandatory coverage for most childless adults, and with flexibility as to the parents of needy families. Under the 2010 amendments, states by 2014 were required to expand their Medicaid programs to cover all individuals under the age of 65 whose income is below 133 percent of the federal poverty guideline. The federal government would initially pay 100 percent of the cost of covering these newly eligible individuals, with that percentage gradually dropping to 90 percent. A state that refuses to adopt the expansion will lose the funds associated with the expansion, as well as its existing Medicaid funds. Medicaid spending accounts for about 20 percent of the average state's total budget, and federal funds cover roughly 50 to 80 percent of this amount. States that decline to adopt the Medicaid expansion will thus lose federal funds that account for between 10 and 16 percent of their total state budget. Is this conditional spending program a valid exercise of Congress's spending power?

Answer: Under the first Dole factor, the question is whether the expanded coverage condition imposed on the receipt of federal funds was stated so clearly and unambiguously that a state accepting federal funds was aware of the consequences of that acceptance. When states signed onto the Medicaid program, they surely knew that Congress might from time to time amend the program. But the question here is whether the significant expansion effected by the 2010 act was something states could be expected to have anticipated when they originally agreed to participate in Medicaid. Here, a good argument can be made that the expansion is beyond what a state could reasonably have anticipated when it first signed on to the program. The expansion can be seen as creating an entirely new universal health care program, quite distinct from the original program that was limited to certain recognized categories of the needy. The fact that the Affordable Care Act created a separate funding provision to cover the costs of those made newly eligible further strengthens this argument. As to the second Dole factor, whether the condition imposed is related to the federal expenditure at stake, this hinges on whether we view the original Medicaid program and the Affordable Care Act expansion as involving different programs, or whether the latter is better characterized as simply a modification of the earlier program. If these are viewed as different programs for the reasons suggested above, then this factor is not met because the government would be using a state's failure to adopt the Affordable Care program as a reason to terminate its funding for the distinct and preexisting Medicaid program. Finally, a strong argument can be made that this is one of those rare instances when the federal government in its relations with the states has crossed the line between persuasion and coercion. The amount of money at stake here is substantial. In the Dole case, if South Dakota refused the federal invitation to raise the state's minimum driving age to 21, the state would lose only 5 percent of its federal highway funds, representing less than half of 1 percent of the state's budget. Here, by contrast, a nonparticipating state would lose 100 percent of its federal Medicaid funds. Depending on the wealth of the state, this would amount to anywhere from 10 to 16 percent of the total state budget. If this spending program were thus deemed to be penal or regulatory, it could be upheld only if Congress has the power to regulate the states in this manner. Such power does not exist, however, for the Court has held that under principles of federalism, Congress cannot compel the states (as opposed to merely giving them an incentive) to enforce a federal regulatory scheme. See §5.6. In National Federation of Independent Business v. Sebelius, supra, the Court held that Congress in this case exceeded its power under the Spending Clause. First, the change effected by the Affordable Care Act was "a shift in kind, not merely degree." 132 S. Ct. at 2605. "A State could hardly anticipate that Congress's reservation of the right to 'alter' or 'amend' the Medicaid program included the power to transform it so dramatically." Id. at 2606. Second, the penalty for failure to adopt the new condition, loss of all Medicaid funds, went beyond what the germaneness requirement permits. "[W]hile Congress may have styled the expansion a mere alteration of existing Medicaid, it recognized it was enlisting the States in a new health care program." Id. at 2606. It would have been different were noncomplying states merely denied the separate Affordable Care funding. Finally, "the financial 'inducement' Congress has chosen . . . is a gun to the head." Id. at 2604. "The threatened loss of over 10 percent of a State's overall budget . . . is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion." Id. at 2605. The Court went on to hold that the act could still be implemented as long as nonparticipating states would lose only the additional Affordable Care funds without also being stripped of their separate Medicaid funding. Id. at 2607.

George and Al were the Republican and Democratic candidates for President of the United States in the 2000 election. That election was a very close one. Its outcome hinged on which candidate was deemed to have won the popular vote in Florida so as to be entitled to that state's 25 electoral college votes. The initial Florida vote count showed Al trailing George by fewer than 1,800 votes out of 6 million votes cast. As a result, Al was entitled to a recount under Florida law. Al raised several challenges to the recount process, but Florida's secretary of state rejected each of them and, after a partial recount, certified George as having won the popular vote in Florida. Al sued the secretary in state court. Florida's high court ruled in Al's favor and held that under state law, counties had an extended but limited amount of time to submit their recount returns. The deadline set by the court was such that Florida would still be able to benefit from a federal "safe harbor" provision, 3 U.S.C. §5, under which Congress would accept the state's designation of its presidential electors. George then sought review in the U.S. Supreme Court, even though the Florida decision was based solely on state law. His petition argued that the Florida court's decision rested on principles derived from the state constitution, whereas Article II, §1 of the U.S. Constitution provides that the manner for choosing presidential electors must be determined by a state's "Legislature." George also claimed that the Florida court had relied on a novel interpretation of state law, thus altering the procedure for choosing presidential electors after the election occurred, in violation of 3 U.S.C. §5, which requires Congress to accept a state's timely designation of its presidential electors if they were chosen in accord with laws enacted prior to election day. Al urged the Court to deny the petition, arguing that the state court decision simply reflected "a narrow reading and clarification of state statutes that were enacted long before the present election took place." May the U.S. Supreme Court review this case if it wishes to do so?

Answer: Unlike cases in which there are both federal and state grounds for a decision, the Florida court's decision rests entirely on state grounds. Yet such a decision is insulated from Supreme Court review only if those state grounds are adequate and independent. As to adequacy, George contends that the state grounds are contrary to two federal provisions. Even if his arguments may appear strained—e.g., 3 U.S.C. §5 seems only to address when Congress will accept a state's designation of its presidential electors, not when a designation is invalid as a matter of law—each is such that, if accepted by the Court, it would render the state ground contrary to federal law and hence inadequate. The possibility of such a ruling is itself enough to defeat the adequacy of a state ground. As to independence, the state court's grounds of decision satisfy this requirement if they were based solely on the court's interpretation of state law. However, if the state court's reading of state law was influenced by its understanding of what Florida needed to do to satisfy the federal "safe harbor" provision, that ground would not be independent of federal law, since a misreading of the federal statute might have affected the court's reading of state law. Thus, the state court's decision arguably did not rest on adequate state grounds; nor is it clear that those grounds were independent. See Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000). In the actual case, the Supreme Court did not address the adequate and independent state ground doctrine as such. However, its opinion noted that the Florida court's decision may have violated Article II, §1 (i.e., no adequate state ground) and may have been shaped by that court's reading of 3 U.S.C. §5 (i.e., no independent state ground). Yet, it was unclear from the state court's opinion whether either of these federal questions was present. The Florida court may have relied solely on state statutes rather than on the state constitution, and while 3 U.S.C. §5 was cited in a footnote, it may have played no role in the decision. Given this uncertainty, Michigan v. Long would have allowed the Supreme Court to review the case. Instead, the Court remanded the case so the Florida high court could clarify the bases for its decision. As the Court explained, "After reviewing the opinion of the Florida Supreme Court, we find 'that there is considerable uncertainty as to the precise grounds for the decision.' This is sufficient reason for us to decline at this time to review the federal questions asserted to be present." 531 U.S. at 78 (emphasis supplied). By reversing and remanding on this basis, the Supreme Court was able to halt the vote recount in Florida without having to address the merits of the case. A day after Florida's high court clarified its decision, the Supreme Court in another case held Florida's recount procedure to be unconstitutional and barred the state from continuing with the process. See Bush v. Gore, 531 U.S. 98 (2000).

Congress offers a grant of $10 billion to the City of Lillywhite, on condition that Lillywhite instruct all of its residents under the age of 18 in methods of contraception. Can Congress validly attach a "string" like this to federal grants?

Answer: Yes. Congress may generally use its conditional spending power to achieve indirectly a result that would be beyond its enumerated powers to regulate directly. So even though Congress probably couldn't simply order a state or city to give contraception instruction (this probably wouldn't come under the Commerce Clause, and it's hard to see what other enumerated power it would come under), Congress may use its spending power to achieve this regulatory goal that it couldn't pursue directly. E Ch.5-II(B)(5); CH pp. 274-275. See the next card for more details. COMPARE: Say that Congress insisted Lillywhite use the funds to build a "whites only" retirement home. This would be an invalid string, because it violates an independent constitutional provision (the Fifth Amendment's Due Process Clause, which imposes equal protection obligations on the federal government).

Did Congress have the authority to charter the Second Bank of the United States?

Answer: Yes. In McCulloch v. Maryland, 17 U.S. 316 (1819), one of the most important early Court decisions, Chief Justice Marshall explained that the power to create the bank could be implied from the Constitution's text. Although the power to create a bank was not explicitly stated in the Constitution, Marshall relied on the "Necessary and Proper" Clause as a justification for the bank's creation. According to Marshall, "necessary" does not mean "absolutely necessary." As long as the means is rationally related to a constitutionally specified object, the means is constitutional. The bank was rationally related to Congress' enumerated powers to collect taxes, to borrow money, and to regulate commerce. E Ch.3-II(B).

The Federal Disaster Relief Act provides federal money to communities and individuals who have suffered losses caused by natural disasters such as floods, earthquakes, and hurricanes. The relief is available without any need to show a connection to interstate commerce or to any other national concern. Is the act within the scope of the general welfare power?

Answer: Yes. Regardless of the purely "local" nature of the catastrophes such that they would very likely fall beyond the scope of Congress's regulatory powers, the presumed congressional judgment that these expenditures are for the general welfare of the nation will be upheld as being well within the discretion of Congress.

Congress, in an effort to streamline the federal judiciary, passes a statute eliminating diversity jurisdiction (i.e., jurisdiction over cases brought by a citizen of one state against a citizen of another state). The legislation would prevent diversity suits from being brought in federal district court, so that they would have to be brought in state court. (The legislation does not directly change the Supreme Court's appellate jurisdiction, so that the Supreme Court can continue to review the judgments of state courts, including state court suits that turn on a federal question.) Is the congressional legislation constitutional?

Answer: Yes. The Constitution gives Congress full control over the jurisdiction of the lower federal courts. In fact, these lower federal courts do not even exist until Congress creates them; Article III, Section 1 grants the federal judicial power to the Supreme Court and to "such inferior courts as Congress may from time to time ordain and establish." This language has been interpreted to mean that Congress may also define the cases that may be heard by the lower federal courts, and that Congress may do this by refusing to let the lower federal courts hear cases that fall within the general federal judicial power (e.g., cases between citizens of different states).

Congress wants to ensure that the money it gives to state and federal governments is used for appropriate projects and not wasted or used for graft. It passes legislation, the Anti-Bribery Act (ABA), which imposes federal criminal penalties on anyone who bribes state or local officials who work for entities that receive at least $10,000 in federal money. Crooked Builder wants to build a new housing development in State of Corruption, and gives State Corrupt Official $5,000 to help him get approval for his building permits. Builder is convicted under the federal statute and appeals its constitutionality. Is the ABA constitutional?

Answer: Yes. The Court unanimously upheld a statute proscribing bribery of state, local, and tribal officials of entities that receive at least $10,000 in federal funds as a valid use of Congress' spending powers. The Court also stated that the Act was necessary and proper to protect the integrity of the use of federal funds. Sabri v. U.S., 541 U.S. 600 (2004); CH p. 279.

Larry Loser has just completed a federal prison sentence for child molestation and is looking forward to his freedom. Then he learns that the federal government plans to civilly commit him under its Sexual Danger Statute. The statute lets the government civilly commit sexual offenders who are mentally ill and dangerous to others. Larry knows that the federal government is one of enumerated powers and that Congress cannot act unless it can point to the constitutional source of its powers. Is there any power of Congress that authorizes the Sexual Danger Statute?

Answer: Yes. The Necessary and Proper Clause, Article I, §8, cl. 18. In U.S. v. Comstock, 130 S. Ct. 1949 (2010), Justice Breyer relied on the Necessary and Proper Clause to uphold a civil commitment statute for sexual offenders. The majority rejected Larry's argument "that, when legislating pursuant to the Necessary and Proper Clause, Congress' authority can be no more than one step removed from a specifically enumerated power." Because Congress already has broad power to criminalize conduct and protect people against dangerous criminals, the Sexual Danger Act had a "means-end rationality" connection to Congress' powers. E Ch.3-II(B)(6). NOTE: Justice Thomas' dissent warned that the Court had breathed new life into the Necessary and Proper Clause and almost transformed it into a federal police power.

Albert "the Scar" Patchino is a big drug dealer in Miami. Congress levies a 60% excise tax on dealers in illegal narcotics. Only $200,000 is raised per year. Congress' principal purpose is to make dealing in illegal narcotics less profitable as well as more dangerous (because of the possibility of prosecution for tax evasion). Assuming Congress couldn't regulate drug dealers directly, is the tax valid?

Answer: Yes. When Congress taxes an activity it couldn't otherwise regulate, the tax will be valid if it either actually raises revenue or Congress intended that it do so. Here, the tax raises some revenue, so it will be upheld, even though Congress could not regulate drug dealers directly. U.S. v. Doremus, 249 U.S. 86 (1919); E Ch.5-I(C); CNR pp. 112-113.

Tommy grows marijuana on his farm in rural Virginia. He sells a small portion of his crop to neighbors and friends, and keeps the rest for himself. On the basis of these activities, Tommy has been charged with violating the Controlled Substances Act (CSA), a federal statute that makes the sale of marijuana a federal offense. Although the elements of the offense do not require any showing of a nexus with interstate commerce, the CSA includes the following congressional findings: "Controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution; local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances; and, federal regulation of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic." Consistent with the commerce power, may Tommy be convicted under the CSA for the local sale of marijuana?

Answer: Yes. Whether Tommy's own activity actually affects interstate commerce is irrelevant. It is enough that Congress has rationally concluded that the intrastate sale of marijuana is sufficiently related to the interstate traffic in marijuana, such that the regulation of intrastate traffic is necessary or appropriate to the effective regulation of interstate traffic. Given the findings made by Congress, it is quite likely that a court will find that Congress has made a rational policy judgment regarding the need to proscribe the intrastate sale of marijuana. In other words, the congressional judgment that there is a substantial relationship between the intrastate marijuana market and the interstate marijuana market is sufficiently rational to permit Congress to regulate the former to more effectively regulate the latter. See Perez v. United States, 402 U.S. 146 (1971) (applying similar reasoning to a purely local extortionate credit transaction).

What is the source of the federal judicial power?

Article III, §1: The federal judicial power "shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." E Ch.2-III(A)(1); CH p. 35.

What are political questions?

Issues that are considered "non-justiciable," because they are: Issues the Constitution commits to another governmental branch (based on separation-of-powers principles); or Issues the judicial process is inherently incapable of resolving and enforcing because there are no standards for resolving the dispute. EXAMPLE: Foreign relations. CRITERIA FOR DETERMINING WHETHER A CASE PRESENTS A POLITICAL QUESTION (at least one must be present): A "textually demonstrable" constitutional commitment of the issue to Congress or the executive branch; Lack of "judicially discoverable and manageable standards"; Need for a single pronouncement from the branches; Difficulty or impossibility of devising effective judicial remedies. Baker v. Carr, 369 U.S. 186 (1962); E Ch.16-VII(B); CH p. 131. N.B.: "Political question" is a misnomer, in that some issues involving political rights are clearly justiciable (e.g., deprivation of the right to vote in general elections). E Ch.15-VII(A)(1); CH pp. 129-130; NR pp. 125-126.

Can Congress give lower federal courts jurisdiction over cases between two state citizens where no federal issues are involved?

No. Congress cannot authorize federal courts to hear cases that are not within the federal judicial power set forth in Article III. E Ch.1-II(B).

Officials in the State of Segregation argue that they are not bound by the lower federal court order to desegregate the public schools. Are they correct?

No. In Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court rejected the argument of Arkansas officials that they did not have to comply with Brown v. Board of Education, 347 U.S. 483 (1954), stating that "the federal judiciary is supreme in the exposition of the law of the Constitution." NOTE: Compare the Supremacy Clause of Article VI of the Constitution, which makes federal law supreme over state law: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." NOTE: The text of the Constitution does not say that the federal judiciary is supreme in interpreting the Constitution. The Court said that it was supreme in interpreting the Constitution in Cooper v. Aaron.

Can Congress alter the Supreme Court's original jurisdiction?

No. The grant of original jurisdiction in Article III, §2 is self-executing; however, Congress may grant concurrent jurisdiction to lower federal courts. That is, Congress may give the lower federal courts the right to hear the same kind of cases (e.g., cases in which a state is a party) as fall within the Supreme Court's original jurisdiction. NOTE: Congress has the power to change federal appellate jurisdiction, as long as the change is made in a neutral manner, without intent to decide the merits of the case through the change in jurisdiction. U.S. v. Klein, 80 U.S. 128 (1872); E Ch.2-III; CNR §2.5.

In determining whether the Supreme Court will review a case, does it matter whether the lower court that decided the case is a state court or a federal court?

No. The most important thing to remember about Supreme Court review of state court decisions is that there must be an issue of federal law—the Supreme Court can't review state court decisions adjudicating only state law issues. There's no limitation like this for discretionary review of lower federal cases.

What provision of the Constitution gives the Supreme Court its power to determine the constitutionality of acts performed by the other governmental branches?

None! No constitutional provision explicitly provides for judicial review. The Supreme Court created this power by means of its interpretation of the Constitution. The Court held that it had the power to declare unconstitutional the acts of other branches of the government (Marbury v. Madison, 1 Cranch 137 (1803)), to declare state statutes unconstitutional (Fletcher v. Peck, 10 U.S. 87 (1810)), and to review the judgment of state courts in cases that fall within the federal judicial power (Martin v. Hunter's Lessee, 1 Wheat. 304 (1816)). E Ch.2-I(A), II(B); CNR §§1.3, 1.4, 1.5; CH pp. 37-39.

States and Standing (what you should know):

The rules for standing may be relaxed for a state suing on behalf of its citizens. Massachusetts sued the Environmental Protection Agency (EPA), alleging that the agency failed to meet its obligations to regulate greenhouse gases under the federal Clean Air Act. In a 5-4 decision, the Court ruled that the state had met the standing requirements of Article III. The injury requirement was met because of global warming's effect on the state's coastal land. On causation and redressability, the Court rejected the EPA's argument that the effect of regulation on the state's environment would be minimal, finding that any improvement in the condition of the environment, even if minimal, would redress the injury. Massachusetts v. EPA., 127 S. Ct. 1438 (2007); E Ch.16-III(C)(5); CNR p. 54.

What type of cases may be brought under the original jurisdiction of the Supreme Court?

Under Article III, §2, Clause 2, the Supreme Court's original jurisdiction extends to all cases: Affecting ambassadors (and other public ministers and consuls); and Those cases in which a state is a party. However, original jurisdiction is most often exercised for controversies between two or more states, under 28 U.S.C. §1251. NOTE: Original jurisdiction can't be enlarged or restricted by Congress; however, lower federal courts could be granted concurrent jurisdiction by Congress. NOTE: Most cases brought under the original jurisdiction of the Supreme Court are between two states. E Ch.2-I(A)(3)(c)(ii); CNR §2.2.

What types of jurisdiction do the federal courts have?

Under Article III, §2, federal jurisdiction extends to: -Cases in which the parties' diversity of citizenship determines the jurisdiction: cases between citizens of different states, where the amount in controversy exceeds $75,000; -Cases in which the subject matter determines the jurisdiction: cases that arise under the Constitution, federal law, or treaties ("federal question" jurisdiction); and -Cases in which the identity of the parties determines the jurisdiction: -Cases between a state and a citizen of another state; -Cases in which the United States is a party (don't forget that the United States may only be sued with its consent, usually provided by federal statute); -Cases between two or more states; or -Cases between a state or its citizens and a foreign country or its subjects. NOTE: The requirement that the amount in controversy in diversity cases exceed $75,000 is statutory, not constitutional (28 U.S.C. §1332). E Ch.5-IV(D); CH p. 36.

Does Congress have the authority to create inferior or lower federal courts?

Yes. Article III, §1 of the Constitution says that the "Judicial Power of the United States, shall be vested . . . in such inferior Courts as the Congress may from time to time ordain and establish."

Congress enacts a statute that removes the Supreme Court's appellate jurisdiction for cases involving abortion. Is the statute valid?

Yes. Congress is expressly granted the power to regulate the appellate (but not original) jurisdiction of federal courts in Article III, §2 of the Constitution. Ex parte McCardle, 74 U.S. 506 (1869). While it's not clear how broad this power is, it's not unlimited; therefore, it's possible that even if Congress eliminated Supreme Court review of certain types of cases (like abortion cases, here), it would have to permit some lower federal court to retain jurisdiction over such cases. U.S. v. Klein, 80 U.S. 128 (1872); E Ch.2-III.

18 U.S.C. § 922(o) makes it unlawful to ''transfer or possess'' a machine gun ''in or affecting interstate commerce.'' Kelly, an accomplished gunsmith, was charged with possession of a machine gun that he had made himself. He was convicted, and appealed on the ground that his intrastate possession of the machine gun could not substantially affect interstate commerce. Which of the following would be most helpful to Kelly's attempt to overturn his conviction? a. Mere possession of the machine gun was not ''economic'' or ''commercial'' activity. b. The statute contained no jurisdictional nexus. c. The findings accompanying the statute mentioned the need to combat interstate and international arms sales by regulating possession. d. The connection between individual possession and the interstate machine gun market was too attenuated to support regulation.

a. Mere possession of the machine gun was not ''economic'' or ''commercial'' activity. Rationale for Correct Answer: If you read the language of the statute carefully, you could exclude B immediately. The language ''in or affecting interstate commerce'' is precisely what the Court meant when it referred to a jurisdictional nexus in Lopez and Morrison. Further, C would not be very helpful, because the presence of findings describing why the regulation of local, intrastate possession was necessary or in what way it was related to interstate commerce would support the constitutionality of the statute. As between the remaining answers, D would not be as helpful, because it is not necessarily true that a ''demandside'' approach to machine gun regulation requires the Court to ''pile inference upon inference'' as it would have had to do to uphold the GFSZA in Lopez. That leaves A, which is the best answer, because the Morrison opinion called the inquiry into the economic nature of the regulated activity ''central'' to Lopez. Further, Lopez itself declined to hold that simple possession was, in any sense of the word, ''economic'' activity; and Morrison strongly hinted that Wickard aggregation was unavailable for noneconomic activity.

Following Lopez, Congress reenacted the GFSZA, which now reads that ''[i]t shall be unlawful for any individual knowingly to possess a firearm that has moved in or otherwise affects interstate or foreign commerce, at a place the individual knows or has reasonable cause to believe, is a school zone.'' Jeremy is charged with violating the statute by bringing a gun to school to sell to another student. At trial, the U.S. Attorney presents evidence that the gun Jeremy possessed was manufactured out of state and crossed state lines before being purchased by Jeremy's father, from whom Jeremy had stolen it. Jeremy is convicted. He appeals his conviction, arguing that under Lopez, Congress lacks authority to criminalize mere possession. Would a reviewing court likely reverse his conviction? a. No, because Congress may regulate things that move in interstate commerce. b. No, because his possession substantially affects interstate commerce. c. Yes, because possession is not economic activity. d. Yes, because permitting Congress to regulate things simply because they travel in interstate commerce would mean no practical limit on its commerce power.

a. No, because Congress may regulate things that move in interstate commerce. Rationale for Correct Answer: The key to this question is the language in the revised statute, ''a firearm that has moved in or otherwise affects interstate or foreign commerce.'' Recall that one of the Court's complaints about the GFSZA in Lopez was that it contained no ''jurisdictional nexus'' between the regulated activity and interstate commerce. The revised GFSZA corrected that, and provides a much easier case for upholding the statute, given what was proven at trial. What was proven, incidentally, was not that Jeremy's possession of the gun substantially affected interstate commerce, nor was such proof necessary under the statute. Therefore B is incorrect. C is not correct either; the statute, unlike the unamended GFSZA, does not criminalize mere possession. It criminalizes possession of a weapon that has traveled in interstate commerce. Again, Lopez held that Congress could regulate ''instrumentalities'' of interstate commerce, including persons and things that moved in interstate commerce. Although it is true that interpretation leaves Congress a great deal of power — perhaps too much — D incorrectly states the law. A is the best answer, and the one that lower courts have given in similar situations.

Assume that a congressional statute authorizes the federal government to exercise eminent domain to acquire property for new post offices. That is, the statute enables the government to force private land owners to sell their land to the federal government if it cannot acquire it through negotiated agreement. The government wants land owned by Farmer Filburn, and begins eminent domain proceedings against the parcel on which the government wishes to place the postal facility. Filburn claims that the statute is unconstitutional. He points out that nothing in Article I gives to Congress the power of eminent domain. Will Farmer Filburn likely prevail on his claim? a. No, because eminent domain would be helpful to the government in exercising its constitutional power to ''establish Post Offices,'' given in Article I, § 8. b. No, because eminent domain is indispensable to the power to establish post offices. c. Yes, because Congress may exercise only enumerated powers given in Article I, § 8. d. Yes, because eminent domain is not a power expressly given to Congress by Article I.

a. No, because eminent domain would be helpful to the government in exercising its constitutional power to ''establish Post Offices,'' given in Article I, § 8. Rationale for Correct Answer: You ought to have found this question straightforward after reading about McCulloch. First, you know that Congress is not restricted to those powers explicitly enumerated in Article I. As Chief Justice Marshall pointed out in the opinion, the word ''expressly'' is omitted both from the delegation of legislative power in Article I and in the Tenth Amendment, which also speaks of powers ''delegated'' to Congress. The framers' omission of that word, he argued, was intentional, and left open the possibility of implied powers. Therefore, you can eliminate C and D right off the bat, as they are erroneous statements of law. That leaves a choice between A and B. Again, however, there is an erroneous statement of law in B: Congress need not demonstrate that a particular implied power is indispensable or essential to the exercise of an enumerated power to take advantage of the Necessary and Proper Clause. McCulloch held that the power need only be helpful or useful. Therefore, A is the best answer.

Congress has appropriated money for the award of 25 Presidential Scholarships chosen by the President and an advisory board. Upon reading that one of the recipients intends to attend a sectarian college and study to be a missionary, Tom Taxpayer sues, claiming that the expenditure of federal funds violates the Establishment Clause. Does Taxpayer have standing to bring the suit? a. No, because the appropriation is to the President to award the money at his discretion. b. No, because the claim represents a generalized grievance. c. Yes, because the Establishment Clause is a specific limitation on Congress's taxing and spending power. d. Yes, because taxpayers have standing to enforce lawmakers' compliance with specific constitutional limitations.

a. No, because the appropriation is to the President to award the money at his discretion. Rationale for Correct Answer: If you remembered that the Establishment Clause represented something of an exception to the rule against taxpayer standing, you might have been tempted to answer C because of Flast v. Cohen. But remember that the recent Hein case narrowly interpreted Flast, drawing a distinction between money spent by Congress itself and that which it delegated to the President to spend at his discretion. Therefore A is the correct answer. B is incorrect because the Establishment Clause functions as something of an exception to this general rule. D, though, is an incorrect statement of law; in general, taxpayers do not have standing to sue for alleged violations of the Constitution where the violation itself has resulted in no concrete injury to the plaintiff.

Emissions from coal power plants in State A are alleged to cause problems in adjoining State B. If left unchecked, the emissions could cause harm to crops and to persons with respiratory problems in State B. So far, the EPA, which has jurisdiction to regulate air quality, has declined to take enforcement action against the plants in State A. Which of the following parties would be most likely to have standing to challenge the EPA's nonenforcement? a. State B, if State B can demonstrate that it stands to bear the costs of treating the respiratory ailments of citizens insured by the state, which are likely to develop in the future as a result of the air pollution. b. A resident of State B who suffers from asthma, which can be triggered by air pollution, like the emissions from State A. c. A resident of State B whose crops are at risk from acid rain produced by the emissions. d. B or C.

a. State B, if State B can demonstrate that it stands to bear the costs of treating the respiratory ailments of citizens insured by the state, which are likely to develop in the future as a result of the air pollution. Rationale for Correct Answer: Even though the harm is neither certain nor imminent, and even though the EPA's enforcement action might raise causation and redressability problems, after Massachusetts v. EPA, State B would be in the best position to challenge the EPA. The other potential plaintiffs would have difficulty demonstrating the imminence of the harm, or of pleading facts making the harm fairly traceable to the EPA's nonenforcement of its own regulations. Because neither B nor C are good answers, neither is D. That leaves A as the best answer.

Representative Ray has a reputation for being a gadfly. Regardless of who is in power, she always peppers colleagues and members of the executive branch with harsh questions about government actions and policies. Wildly popular in her district, many of her colleagues — and members of the executive branch — find her abrasive, rude, and uncollegial. In fact, she is so unpopular that following reelection, she was seated with the House once the new term began, but soon found herself expelled by her colleagues, pursuant to Article I, § 5, clause 2, which permits both houses of Congress to exclude members with a two-thirds vote. Furious, Ray sues, claiming that she was expelled simply for being too good at her job. She claims that her expulsion was unconstitutional and seeks reinstatement. The Speaker of the House, on the other hand, claims that expulsion is a political question and that the suit is nonjusticiable. For whom should the federal judge in the case rule? a. The Speaker, because the Constitution commits the power to expel to each House of Congress. b. The Speaker, because the Court could not decide the case without expressing disrespect for the House's judgment. c. Ray, because the House may not expel her except for cause. d. Ray, because the Court can interpret the Constitution to decide whether a claim is justiciable or not.

a. The Speaker, because the Constitution commits the power to expel to each House of Congress. Rationale for Correct Answer: This scenario is a slight variation on the facts in Powell v. McCormack. The House's decision not to seat Representative Powell was a compromise. Members voted for his exclusion who would not have voted to expel him after Powell was seated. In Ray's case, she was seated, then expelled by the requisite two-thirds majority. After Powell, the Court will review claims of justiciability, especially claims that the Constitution commits some power or other to a particular branch, but that does not mean that it will pass on the ultimate merits. In Nixon, for example, the Court agreed with the Senate's lawyers that the Constitution did commit power to try impeachments to the Senate alone, and thus did not attempt to define the limits of what constituted a valid trial by the Senate. Therefore, D cannot be correct. Further, the Constitution is silent as to the reasons for expulsion; although Article I, § 5 says that members may be ''punished'' for ''disorderly behavior,'' it says nothing about expulsion, except that it requires a two-thirds supermajority. Thus C is incorrect as well. Although B might be true, that argument against justiciability was rejected in Powell; as the Court noted, many times it is called on to invalidate actions undertaken by Congress or by the executive in ways that might be taken (certainly by those branches) as evincing disrespect, but that did not prevent the Court from exercising judicial review. That leaves A as the best answer: The Constitution places that power with each House, and there is a safeguard in the supermajority requirement. Further, the text itself furnishes no criteria that courts could use to fashion judicially manageable or applicable standards. That bolsters the conclusion that the Constitution commits that power to each House alone.

Thomas Quill calls the White House switchboard and threatens to kill the President of the United States. After an investigation by the Secret Service, Quill is charged with and convicted of violating 18 U.S.C. § 871(a), which prohibits ''knowingly and willfully . . . mak[ing] [a] threat against the President. . . .'' Facing a fine and up to five years' imprisonment, Quill appeals his conviction, claiming that Congress lacks the authority to criminalize threats against the President. Having read the Court's disposition of Robin Weathers's case, Quill points out that there is no power in Article I, § 8 to which criminalizing threats to the life of the President could be considered ''necessary and proper.'' How should a reviewing court rule? a. Affirm Quill's conviction because criminalizing threats against the President is necessary and proper to Congress's power to provide for the general welfare found in Article I, § 8, clause 1. b. Affirm Quill's conviction because criminalizing threats against the President is necessary and proper to allow the President to, as Article II, § 3 states, ''take Care that the Laws be faithfully executed. . . . '' c. Reverse Quill's conviction because criminalizing threats to the President could not conceivably be necessary and proper to any of Congress's Article I, § 8 powers. d. Reverse Quill's conviction because the passage of criminal laws is reserved to the states by the Tenth Amendment to the Constitution.

b. Affirm Quill's conviction because criminalizing threats against the President is necessary and proper to allow the President to, as Article II, § 3 states, ''take Care that the Laws be faithfully executed. . . . '' Rationale for Correct Answer: This was a little bit trickier. The key to answering the question is to remember the precise phrasing of the Necessary and Proper Clause. Not only may Congress pass laws necessary and proper to execution of its own powers, but it may also pass laws necessary and proper to ''other powers vested by this constitution in the government of the United States, or in any department there-of.'' U.S. Const. art. I, § 8, cl. 18. Thus, C is wrong, because one need look to other potential sources of power in the Constitution to decide whether a particular exercise of the Necessary and Proper Clause power is constitutional. Careful reading would have led you to exclude D as well, as Congress need not have explicit power to pass a particular law. Between the remaining answers, A is incorrect because there is no general power to legislate ''for the general welfare'' in Article I. Such a power would render the rest of § 8 superfluous! Congress does have the power to ''lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States,'' U.S. Const. art. I, § 8, cl. 1, but that is not the same as having a general legislative power to so provide. That leaves B, which is the best answer. Congress might think it helpful or useful to criminalize threats against the life of the President so as to ensure that she is able to carry out her executive duties. The Necessary and Proper Clause gives Congress implied powers to furnish means to other officials to discharge the ends of their offices, just as it furnishes Congress itself with the power to choose means to achieve its legislative ends.

President Pauli has promised Ed Executive that she will veto a regulatory bill that has just passed Congress limiting the pay of publicly traded corporations' executives. The bill was born of the public — and Congress's — dismay at the large disparities between what the top earners made at various publicly traded corporations and what those at the bottom took home. To his dismay, however, the President soon reverses course and signs the bill, later claiming that she was persuaded that the curb was, indeed, needed. Furious because his own pay is due to be decimated, Ed files suit in federal district court seeking judicial review of the President's veto. A reviewing court is likely to: a. Grant judicial review, because of the President's promise to Ed. b. Deny review because the decision whether to veto a bill or not is within the President's discretion. c. Deny judicial review because acts of the President are not subject to judicial review. d. Deny judicial review because courts will not review controversies involving politics.

b. Deny review because the decision whether to veto a bill or not is within the President's discretion. Rationale for Correct Answer: This tested how well you understood the proposition for which Marbury stood. Recall the discussion about Chief Justice Marshall drawing a distinction between cases involving rights vested by law in an individual, for which a court could provide remedy if those rights were violated; and those decisions for which only a ''political'' remedy was available, because they were committed to the discretion of elected officials? That distinction is key to this question. The Constitution gives the President the discretion to veto or to sign a piece of legislation (subject to the veto being overridden by the requisite vote in both houses of Congress). Therefore, whatever private promise the President made has little bearing on her ability to exercise her veto according to the discretion committed by the Constitution. Therefore A cannot be the correct answer. Further, C is not the correct answer because it is an incorrect statement of law: Although certain acts are committed by the Constitution to the President's discretion, held Marbury, it does not follow that all are — indeed, the Court regularly reviews (and invalidates as unconstitutional) acts of Presidents. D is also incorrect; it is an overreading of Marbury. Many constitutional controversies in which the Court exercises judicial review involve politics of one sort or another. It is not the political nature of the controversy that Marbury says renders it unfit for judicial review; rather, it is whether the power exercised is one committed to the ''political discretion'' of another actor that matters. Article II gives the President the power to veto a bill or sign it at her pleasure, private promises to the contrary notwithstanding. Therefore B is the best answer. As Chief Justice Marshall put it, ''By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion and is accountable only to his country in his political character, and to his own conscience.''

Dan was convicted of violating a federal law requiring commercial farming operations to be "carbon neutral," that is, the farms do not add significantly to greenhouse gasses or to global warming. Under the federal legislation, state agricultural officials are charged with conducting inspections and issuing certificates. Dan failed to obtain a certificate. He alleges that the federal legislation commandeers state officials to implement a federal program and is thus unconstitutional. The State is not a party to the lawsuit. In response, the federal government seeks dismissal of the lawsuit saying that Dan lacks standing to assert his defense. Only the State, the federal government argues, may seek to vindicate those federalism interests. How should the court rule? a. For Dan, because he has an interest in ensuring the government acts in a constitutional manner. b. For Dan, because he may challenge the constitutionality of an act under which he is being prosecuted. c. For the government, because Dan is seeking to make claims that belong to third parties not before the Court. d. For the government, because Dan has suffered no injury.

b. For Dan, because he may challenge the constitutionality of an act under which he is being prosecuted. Rationale for Correct Answer: On the one hand, Dan seems to satisfy all of the requirements of Lujan (injury-in-fact that's fairly traceable to the government, and likely to be remedied by a favorable decision); therefore, his interest in the case is not simply forcing the government to act constitutionally (which is not sufficient to get standing). Therefore neither A nor D is correct. While he is raising claims of third parties, doing so is not always a bar to standing, so C is not an accurate statement of the law either. That leaves B, which is what the Court recently held in Bond v. U.S.

Which of the following would be least likely to be held a political question by a reviewing Court? a. A suit by members of Congress alleging that the President's commitment of military forces overseas without a congressional declaration of war was unconstitutional. b. A suit by the President against members of the Senate whose refusal to hold confirmation hearings on judicial nominees has resulted in the inability of the President to fill vacancies in the federal judiciary. c. A suit alleging that a federal hate crimes law exceeded the scope of Congress's powers under Article I, § 8 brought by a criminal defendant charged with violating the law. d. A suit by a judge who was impeached and removed from office for alleged sexual harassment of lawyers and court staff, who claimed his impeachment and removal were unconstitutional because his offenses did not rise to the level of ''high crimes and misdemeanors.''

c. A suit alleging that a federal hate crimes law exceeded the scope of Congress's powers under Article I, § 8 brought by a criminal defendant charged with violating the law. Rationale for Correct Answer: This is intended to be a basic warm-up question. If you are stumped, read through the Baker factors again and perhaps glance at a copy of the Constitution. The first two factors are whether the Constitution seems to have committed the power to another branch, or whether the question presents difficulties in the creation of standards by the courts. In A, for example, the Constitution does give Congress the power to declare war, but it also makes the President the commander-in-chief of the military. The document says nothing about resolving conflicts when, for example, the President commits military forces without a formal declaration of war. In addition, the decision whether and when to commit military forces involves substantial issues of policy that are probably better left to the political branches. Similarly, in B the President and the Senate have shared responsibilities for nominating and confirming judicial nominees, but what happens when there is a stalemate between the branches? Can the judiciary order the Senate to hold hearings? Force a vote on nominees? It's likely that a court would simply let the branches work it out for themselves. In D, not only does the Constitution assign the sole power of impeachment and the sole power to try impeachments to the House and Senate, respectively, but the Constitution contains no criteria for defining ''high crimes and misdemeanors.'' Therefore, C is the better answer, because questions about the scope of congressional power and the meaning of words like ''commerce'' and Article I form the warp and woof of constitutional law. If you didn't choose C because you thought that the controversy was ''political'' — that is, concerning the powers of the political branches — your confusion is understandable because the ''political question'' is something of a misnomer. Issues aren't nonjusticiable simply because they involve ''political'' disagreements or controversies involving one or more of the ''political'' branches. Much constitutional litigation involves intense political disagreements, or challenges by one branch to actions of another.

U.S. military commitments have taxed the armed forces to the point that Congress revives the draft. Now men 18 to 25 are chosen by lottery to serve for at least two years in the armed forces. Under the lottery system, lower numbers are called up first; higher numbers, if needed, will be called up in the future. Which of the following plaintiffs would likely be found to have standing if any files suit challenging the legality of the draft? a. Parents of a 17-year-old male alleging that the draft is unconstitutional in the absence of a congressional declaration of war. b. A 19-year-old female who argues that the draft violates the Thirteenth Amendment's ban on involuntary servitude. c. An 18-year-old male who drew a low lottery number and has received instructions to report for a physical. d. Any of the above.

c. An 18-year-old male who drew a low lottery number and has received instructions to report for a physical. Rationale for Correct Answer: Because the draft affects only males of a certain age, the plaintiff in B couldn't suffer any harm. Similarly, although parents can sometimes assert the rights of their minor children, it's unlikely that they or their child are likely to be found to have suffered any imminent harm. It's unclear that, in a year, he will have been assigned a lottery number or, if he is, whether he will be subject to a call-up or not. Thus A is not correct either. If A and B are excluded, then D cannot be the correct answer. That leaves C, which is not only the only answer left, but presents someone whose injury could be described as concrete and particularized — has not only gone through the lottery, but has actually been ordered to report.

Under federal law, one who, with intent to produce death or serious bodily harm, ''takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation'' is guilty of the federal crime of carjacking and subject to a lengthy prison sentence. 18 U.S.C. § 2119. Ferris Felon is convicted of a carjacking that occurred entirely within the boundaries of a single state and challenges the constitutionality of § 2119, claiming that it exceeds Congress's power under Article I, § 8. Felon notes that nothing in Article I gives Congress the power to pass criminal laws or regulate automobiles; and that carjacking is, at best, indirectly related to the power of Congress to regulate ''commerce among the several states.'' Is Felon's argument likely to succeed in reversing his conviction and invalidating § 2119? a. Yes, because § 2119 is not necessary and proper to any enumerated power. b. Yes, because the statute is a pretextual regulation of interstate crime. c. No, if Congress could have rationally concluded that criminalizing carjacking would aid in the regulation of interstate commerce. d. No, because any connection to any enumerated power will suffice to authorize congressional action.

c. No, if Congress could have rationally concluded that criminalizing carjacking would aid in the regulation of interstate commerce. Rationale for Correct Answer: Finding the right answer to this question has become a little more difficult in light of the conflicting visions of the Necessary and Proper Clause featured in cases like Comstock and National Federation of Independent Business. But careful reading can help you reason to the best answer. As we'll see in the next chapter, Congress has the ability to regulate not only interstate commerce qua interstate commerce, but also the ability to regulate "instrumentalities" of interstate commerce, like cars. The Necessary and Proper Clause clearly authorizes this: Congress could think that it might more effectively regulate "commerce among the several states" if it could regulate instrumentalities of commerce by, say, prescribing safety standards for automobiles, trains, ships, and the like. The question then is whether Congress may pass laws that are necessary to another law that was necessary to an enumerated power? Criminalizing carjacking under this theory would be okay, despite the lack of mention in Article I about either autos or criminal laws, because such a law is a "necessary and proper" regulation of a particular instrumentality of commerce that Congress may regulate because regulation of those are "necessary and proper" to the regulation of interstate commerce. Comstock clearly holds that necessary and proper laws need not be restricted to one remove from the enumerated power. So A is not the best answer. Nor is B. Chief Justice Marshall mentioned that "pretextual" regulations would be invalidated, but neither he, nor subsequent Courts, have been able to articulate where that line resides. At the same time, as both Comstock and NFIB make clear, there is an outer limit to what the Necessary and Proper Clause would permit. That means D is not the best answer either. That leaves C, which commanded five votes in Comstock (along with two concurring opinions), and is — the statements of five justices in NFIB notwithstanding — probably the most accurate statement regarding laws like § 2119.

The IRS issues a revenue ruling that granted favorable tax treatment to nonprofit hospitals that offered only emergency room care to indigent patients, as opposed to offering both free emergency and nonemergency care. Indigent plaintiffs and organizations that advocate for the poor challenge the ruling, claiming that it violates both the Internal Revenue Code and the Administrative Procedures Act, which governs the issuance of regulations by administrative agencies like the IRS. If the court dismisses the suit for lack of standing, it would likely do so because: a. The plaintiffs have suffered no harm. b. The injury is not imminent. c. The lack of free, nonemergency care is not fairly traceable to the revenue ruling. d. The plaintiffs are not in the zone of interest of the APA or the Code.

c. The lack of free, nonemergency care is not fairly traceable to the revenue ruling. Rationale for Correct Answer: The facts here are those of Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976), in which the Court held that plaintiffs had no standing to challenge an IRS exemption for hospitals providing free emergency care only to indigents. There was no proof, the Court held, that the unavailability of nonemergency care for indigents was traceable to the IRS's revenue ruling. Therefore C is the correct answer. A and B are incorrect, because the continuing lack of access to indigent health care could be a concrete, particularized harm. D is incorrect because the APA, at least, is being invoked for the precise reason it was created: to ensure that agencies follow certain procedures in enforcing the laws they were tasked with administering.

A federal statute makes it a crime to ''take[] a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation,'' with ''the intent to cause death or serious bodily harm.'' Jack is convicted of violating this statute, but, having heard about Lopez, appeals his conviction on the grounds that it exceeds Congress's constitutional authority. Jack's conviction should be: a. Overturned, unless the government can prove that carjacking has a substantial effect on interstate commerce. b. Overturned, because violent crimes such as carjacking are areas of traditional state activity. c. Upheld, because cars are instrumentalities of interstate commerce. d. Upheld, because crimes like carjacking represent a kind of forced wealth transfer that is economic, albeit illegal, activity.

c. Upheld, because cars are instrumentalities of interstate commerce. Rationale for Correct Answer: In analyzing Commerce Clause questions, it's important not to assume that you have to jump into an extended discussion of the Lopez and Morrison factors that determine whether intrastate activity substantially effects interstate commerce and thus is subject to congressional regulation. Recall that the Court recognized two other broad areas of regulatory authority over (1) channels of interstate commerce and (2) instrumentalities of inter-state commerce, including persons and things in interstate commerce. Thus A is incorrect. If the regulated activity could be framed as a regulation of channels or instrumentalities, then no inquiry into the activity's substantial effects is necessary. For the same reason B is incorrect. Whether Congress is regulating in an area usually regulated by states is relevant only if the regulated activity can be sustained, if at all, only by proof that it substantially affects interstate commerce. D is incorrect, because even assuming that crime is a type of economic activity, that is precisely the kind of inference-upon-inference argument that the Court rejected in both Lopez and Morrison. It proves too much: Nearly everything is economic under that reading, and susceptible to congressional regulation. That means that Congress has precisely the sort of all-encompassing police power that Lopez and Morrison took pains to deny that the Constitution granted. That leaves C as the best answer. Punishing carjacking either seeks to protect cars in interstate commerce (note the jurisdictional nexus) or their drivers, both of which could be characterized as instrumentalities of interstate commerce.

David is being held at a military base without charges on suspicion of conspiring to commit acts of terrorism in the United States. David's father, Arthur, seeks to challenge his son's confinement in federal court, because David himself has not been permitted access to a lawyer. Would Arthur have standing to challenge his son's incarceration? a. No, because Arthur has suffered no harm. b. No, because Arthur may not assert the rights of third persons. c. Yes, because David is unable to assert his own rights. d. Yes, because parents may always assert the rights of children.

c. Yes, because David is unable to assert his own rights. Rationale for Correct Answer: Ordinarily plaintiffs cannot raise claims of third parties, but there are exceptions. So B is an incorrect statement of law. One exception is where a special relationship exists between the plaintiff and the third party, as that which exists between a parent and a child. If you remember the discussion of the Newdow case, however, you will recall that there the Court denied standing to the father who was challenging the use of ''under God'' in the Pledge of Allegiance because he was a noncustodial parent. Therefore D is incorrect. Parents do not always have the right to assert their children's rights. A is not so much incorrect as beside the point; in some cases, as noted, the courts permit those who have suffered no personal harm to raise the claims of others. That leaves C, which is the right answer. Another exception to the third-party standing rule is where the third party is unable to vindicate her own rights. David's situation would seem to fit this exception perfectly.

Certain states (notably New York) permit rental car agencies to be sued for negligence committed by a person to whom the agency rented a car. Recently, Congress enacted the so-called Graves Amendment as part of a larger transportation bill. The Graves Amendment reads, in relevant part: In general. — An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if — the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). 49 U.S.C. § 30106. The practical effect of the Graves Amendment is to preempt causes of action for negligent entrustment against or imposing vicarious liability on car rental agencies. Several suits have been filed alleging that the Graves Amendment exceeds Congress's commerce power. Which of the following descriptions of the amendment would be helpful in crafting arguments in favor of the statute's constitutionality? a. The effect of the amendment is to regulate cars rented in a national rental market. b. The effect of the amendment is to alter tort liability rules arising from intrastate rental transactions. c. The effect of the amendment is to regulate the economic activity between rental agencies and their customers. d. A or C.

d. A or C. Rationale for Correct Answer: This question is intended to demonstrate how the framing of an issue can make a difference when analyzing a law under the Commerce Clause. Lopez and Morrison held that Congress can regulate instrumentalities and channels of interstate commerce, in addition to local activities that substantially affect interstate commerce. The Graves Amendment arguably regulates rental cars, which are instrumentalities of interstate commerce. Framed in that manner, it would easily pass muster. Therefore, A would be a strong argument in favor. On the other hand, it isn't cars per se that are regulated, but rather the Amendment alters liability rules that arise from the rental transaction itself. If any-thing is a ''traditional state activity,'' it is the establishment of tort rules that govern local transactions — note there is nothing in the Amendment limiting it to inter-state transactions. Therefore, framing the issue as in B would not be helpful; in fact, that's the way one might want to frame the issue if one was arguing against the Amendment's constitutionality. And yet the statute does regulate an economic transaction — note that the Amendment restricts itself to those ''engaged in the trade or business of renting or leasing motor vehicles'' — and Morrison tells us those are the activities for which Wickard-style aggregation is possible. Therefore framing the issue as C does would be helpful as well. Because either A or C would be useful in defending the Amendment, the correct answer is D.

Title 18 of the U.S. Code, § 2115, reads: Whoever forcibly breaks into or attempts to break into any post office, or any building used in whole or in part as a post office, with intent to commit in such post office, or building or part thereof, so used, any larceny or other depredation, shall be fined under this title or imprisoned not more than five years, or both. Robin Weathers was arrested and convicted for violating § 2115 after he was caught inside the Monteagle, Tennessee post office with fistfuls of mail and assorted packages. He has challenged the constitutionality of this statute, arguing that while Article I, § 8 gives to Congress the power to ''establish Post Offices and post Roads,'' nothing in Article I gives Congress the power to pass criminal laws. How should a court rule on his appeal? a. Affirm the conviction, because Congress was acting pursuant to its police powers. b. Reverse the conviction, because Congress has no Article I power to create criminal offenses, other than its power to ''define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.'' c. Reverse the conviction, because state law could adequately deal with mail thefts. d. Affirm the conviction because punishing theft of the mail is ''necessary and proper'' way to carry out the ''establish[ment] of Post Offices.''

d. Affirm the conviction because punishing theft of the mail is ''necessary and proper'' way to carry out the ''establish[ment] of Post Offices.'' Rationale for Correct Answer: This was another warmup, to see how carefully you read what went before. A cannot be the correct answer, because Congress — unlike state governments — does not possess plenary legislative power. It must trace its authority to act to powers enumerated in Article I, § 8. But because McCulloch tells us that Congress is not limited to express Article I powers, you know that B is incorrect, as the power to create crimes does not necessarily have to be given affirmatively to exist. Moreover, whether state law could deal adequately with mail thefts is beside the point — the issue is whether Congress, should it choose to do so, could criminalize theft of the mails independent of the states. Therefore C, too, is incorrect. That leaves D, which is correct because Congress could think that criminalizing mail theft is ''necessary and proper,'' which is to say expedient and useful, to the establishment of post offices in the first place.

The Federal Arbitration Act (''FAA'') requires enforcement of a ''written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable.'' 9 U.S.C. § 2. Prior case law has interpreted ''involving commerce'' to mean ''affecting commerce.'' Jerry lives in a state with laws that disfavor arbitration clauses, and defaults on a loan to a state bank whose loan officer Jerry claims defrauded him. When the bank secures an order requiring arbitration, Jerry cries foul. Congress, he argues, has exceeded its commerce power in ordering intrastate disputes arbitrated, contrary to the declared public policy of the state. Which of the following argument(s) is/are helpful to the bank seeking enforcement? a. The FAA has a jurisdictional nexus. b. The FAA regulates economic activity. c. In the aggregate, all contracts containing arbitration clauses substantially affect interstate commerce. d. Any of the above.

d. Any of the above. Rationale for Correct Answer: The answer is D. Each of the statements would be helpful to the bank seeking to defend the FAA under Lopez and Morrison.

Disturbed at reports that Americans are "bowling alone," as one author put it — declining to join various civic organizations like Rotary, the Kiwanis, etc., State decides to create financial incentives to keep those groups financially solvent. State allows individuals to donate up to $1000, which may be deducted from the income on which one pays state income tax. In addition, however, the state furnishes individuals with an additional credit of up to $500 against any state income taxes owed, for donations made over $1000. Donations to places of worship and religious orders are eligible. A group calling itself Freethinkers for Fiscal Responsibility made up of state taxpayers, challenges the credit, calling it an unconstitutional state-sponsored giveaway to churches. The State, meanwhile, alleges the taxpayers have no standing to challenge the program. A reviewing court should: a. Side with the taxpayers because the scenario is covered by Flast v. Cohen. b. Side with the taxpayers because they have an interest in ensuring that tax revenues are not spent on unconstitutional programs. c. Side with the State, because taxpayers have no right to challenge the constitutionality of state spending programs. d. Side with the State, because the aid does not involve legislative appropriations to religious entities.

d. Side with the State, because the aid does not involve legislative appropriations to religious entities. Rationale for Correct Answer: Let's eliminate some prospects at the outset. First, from your reading, you know that taxpayer standing is difficult to maintain. In fact, taxpayers do not have an undifferentiated interest in ensuring money is spent in a constitutional manner — or at least that interest is not sufficient to maintain a suit in federal court. So B is not right. However, it goes too far to say that taxpayers never have any ability to challenge spending decisions; that's inconsistent with Flast. C, therefore, is incorrect as well. As between the remaining choices, one has to remember that cases like Hein and Winn have chipped away at Flast, so that it stands for little more than its result. As a consequence, Winn refused to expand Flast to cover instances in which government is aiding religion through tax expenditures (tax credits and deductions) as opposed to direct appropriations. The best answer, therefore, is D and not A.

Troubled over statistics correlating high rates of child and adult obesity with chronic health problems among the nation's uninsured and underinsured, Congress imposes a 10 percent excise tax on the net profits of companies who knowingly market ''unhealthy'' foods, as defined by statute, to children. Producers allege that the tax is really a penalty. This "obesity impact fee" is collected by the Department of Health and Human Services and used to fund obesity prevention programs. Their challenge is likely to: a. Succeed, if they can prove that the tax is intended to discourage production of the snacks rather than raise revenue. b. Succeed, because the tax violates the reserved powers of the state. c. Succeed, unless Congress otherwise has the power to prohibit the sale of unhealthy snacks. d. Succeed, because it is not a valid tax.

d. Succeed, because it is not a valid tax. Rationale for Correct Answer: While it looked as if Bailey v. Drexel Furniture Co.'s distinction between valid taxes and invalid penalties had been superseded, National Federation of Independent Business revived that distinction, contrasting the penalty invalidated in Bailey with the valid tax imposed on an individual's refusal to obtain health insurance by the Affordable Care Act. Chief Justice Roberts pointed to three things that distinguished the latter from the former: (1) the onerous nature of the tax; (2) the presence of a scienter requirement; and (3) whether the IRS collects the revenue from the "tax." Here, the "fat tax" looks more like the child labor tax in Bailey than the payment for not having insurance in National Federation of Independent Business. D, therefore, is the best answer. A is not correct because all taxes discourage the activity taxed to some degree. B is incorrect because the taxation of products isn't an area exclusively set aside for states. C is incorrect because the power to tax is an independent power and does not need to be tied to another enumerated power.

A federal statute states that ''anyone who crosses state lines for the purpose of selling a controlled substance'' shall be subject to five years imprisonment, large fines, or both. Freddie crosses from New Jersey into New York to sell a small amount of marijuana to an undercover police officer. He is arrested and convicted of violating the federal statute. He appeals his conviction claiming that Congress lacked authority to pass the statute under its commerce power. Freddie's conviction should be: a. Reversed, because the statute failed to require that the sale have a substantial effect on interstate commerce. b. Reversed, because crime cannot be ''commercial'' or ''economic'' activity. c. Upheld, because sales, even of contraband, constitute economic activity under Lopez. d. Upheld, because Congress can close the channels of interstate commerce to particular uses.

d. Upheld, because Congress can close the channels of interstate commerce to particular uses. Rationale for Correct Answer: This question is intended to remind you that the action is not always in locating substantial effects on interstate commerce. The power of Congress to close the channels of interstate commerce to harmful or injurious uses dates back over a century. Thus, A is irrelevant; the statute doesn't have to mention substantial effects because it criminalizes crossing state lines to sell drugs. Further, neither B or C matters, although, as it happens, illicit activity can still be economic activity for Commerce Clause purposes. That leaves D, which is the correct answer. Congress may regulate the channels of interstate commerce, closing them off to particular uses, or harmful activities.

As more states authorize law-abiding citizens to obtain licenses to carry concealed handguns as a matter of right if they satisfy the statuto-ry criteria, newspapers and other organizations have expressed interest in obtaining and publishing the names and addresses of those who have obtained concealed-carry permits. Permit holders and gun rights groups object, claiming that this violates the privacy of permit holders and could make them targets for burglary by those wishing to steal their guns. Oth-ers object to being solicited by insurance agencies and gun safety organizations, which buy lists of permit holders and contact them in hopes of drumming up business. In response to permit holders' complaints, Congress passes a statute prohibiting any ''person'' — defined to include state and local governments as well as private businesses — from buying or selling in interstate commerce the identities of concealed-carry permit holders. The State of Ames, which had been supplementing its budget selling the lists of those holders to private businesses, sues claiming that the statute is unconstitutional. What should a reviewing court do? a. Invalidate the law, because the federal statute impermissibly commandeers state officials who must comply with it. b. Invalidate the law, because it exceeds Congress's power under the Commerce Clause. c. Invalidate the law because it violates the Tenth Amendment. d. Uphold the law under the Supremacy Clause.

d. Uphold the law under the Supremacy Clause. Rationale for Correct Answer: GUN SHOW. Another tricky one! (Well, these are supposed to be the trickiest of the lot.) Did you think this was impermissible commandeering? If you did, go back to Chapter 4 and read the section on Reno v. Condon. Recall that in Condon, the Court upheld a similar bill barring persons (including states) from selling driver's license data. The Court held (1) that because the data was in interstate commerce, Congress could regulate it, and (2) that forcing states to comply with the ban was not commandeering because the states didn't have to do anything, except stop selling the data. To hold otherwise would have been to effect a repeal of the Supremacy Clause, because states are already under a constitutional obligation to comply with a valid federal law. Thus, A and B are incorrect. C is incorrect as well; if the statute does not impermissibly commandeer the state officials, then it does not offend the Tenth Amendment principles embodied in the anti-commandeering doctrine. That leaves D, which is the correct answer. The Act regulates a thing in interstate commerce, as permitted by Lopez and Morrison, and thus trumps contrary state law under the Supremacy Clause of Article VI. Ch. 4.B.5 and Ch. 4.D.3.

Senator Solon is appointed to be Secretary of the Treasury. During the time Solon was in the Senate, she voted to increase the pay of several executive officials, including the Treasury Secretary. Peter, a constituent of Solon, sues, claiming the appointment violates the Emoluments Clause of Article I, § 6, clause 2, which reads that ''[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time. . . . '' Does Peter have standing to bring suit? a. Yes, because Peter has suffered injury by the Secretary's failure to follow the Constitution. b. Yes, because a portion of Peter's tax revenues that fund the Secretary's salary have been used to pay for an unconstitutional appointment. c. No, because the injury is not redressable by a judicial decision. d. because Peter has alleged a generalized grievance.

d. because Peter has alleged a generalized grievance. Rationale for Correct Answer: It was probably easy to exclude A because you know that some ''psychic injury'' suffered by citizens who find out that their public officials aren't following the Constitution is not the kind of concrete, particularized injury-in-fact required by Article III. Similarly, the mere fact that some tiny portion of one's taxes go to pay for allegedly unconstitutional governmental actions also fails to satisfy the constitutional requirement unless Flast v. Cohen applies, which it does not because the controversy here does not involve congressional appropriations alleged to violate the Establishment Clause. So B is out, too. C isn't right either, because presumably a court could order that the appointment be rescinded or rule that actions taken by an ineligible official were null and void. That leaves D, which is the best answer. At most, Peter's complaint represents a complaint that he shares in common with millions of other citizens who might prefer that elected officials obey technical parts of the Constitution, like the Emoluments Clause. Be that as it may, courts will not allow that kind of generalized grievance to confer standing on someone who is not otherwise personally injured.