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3 Types of Federal Power

1. Expressly Delegated Powers

Those we speak about in the Constitution. The federal government, we normally say, consists only of delegated powers, except for a few inherent powers in foreign affairs. When we say delegated powers we mean, people of the United States, through their chosen representatives, got together back in 1787 and held a constitutional convention and decided to delegate the federal government certain powers. The federal government would have those powers and not others with the exception of inherent powers in foreign affairs.

2. Impliedly Delegated Powers (McCulloch)

McCulloch Case - Two issues: (1) Whether or not the Constitution authorizes Congress to create a national bank; and (2) whether the state can tax that bank. The court says that the government is a government of delegated powers. Marshall did not depart from that concept at all. The question is really whether delegated powers means only expressly delegated powers or also include some powers that are impliedly delegated. Marshall reasoned that the delegated powers included implied powers, based in part on the necessary and proper clause (Art. I, Sec. 8), and in the Articles of Confederation they had language similar to the 10th Amendment, . . . powers not delegated to the United States are reserved to the states, in the Articles it said powers not "expressly" delegated. When the framers of the 10th Amendment chose not to use that word "expressly" was an implied recognition on their part that the authors of the 10th Amendment clearly meant that the federal government had implied powers as well as express.

3. Inherent Powers (Curtis-Wright)

Foreign Affairs "Comes with the Job!" Power originally vested in the King of England. Certain powers are just inherent in being the sovereign head of any nation. Power to deal with other nations, power to make war and defend the nation against attacks. These are inherent powers. States did not delegate to the federal government because the states never had them. They came from England. So long as England was our sovereign, they remained in England. When England ceased to be over the United States, those powers transferred from England to whatever the federal government was at the time.

Key Case - Curtis-Wright - dealing with the power of the President to impose tariffs and alter the rates of tariffs.


Article III says the judicial power of the United States shall be vested in a Supreme Court and such other courts as Congress may establish.

1. Judicial Review not expressly granted but may be implied (Marbury)

Judicial Review was not specified in the Constitution. Marshall reasoned in Marbury v. Madison that since the Constitution takes precedence over a statute, it would follow that any statute that is inconsistent with the constitution is unconstitutional and null and void. Since they derive their authority from the constitution and they are invalid if they violate it. Marshall takes the last step in this case that since we already have the authority to interpret the constitution and statutes and decide if they are in conflict and if so, the statute is null and void, then someone has to take the initiative to strike down acts of Congress or acts of the President or various states, if those acts violate the constitution. Since the Constitution doesn't specify anyone in particular to do it, the Supreme Court will humbly volunteer for the job.

2. Jurisdiction

a. Supreme Court
1. Original
Very rare. Applies to ambassadors, ministers, cases involving states, etc.

2. Appellate
All other cases. Can't take what the Constitution says is appellate jurisdiction and give it to the Supreme Court in the form of original jurisdiction. (Marbury v. Madison)

a. May be limited (Ex Parte McCardle)
Ex Parte McCardle - petition for writ of habeas corpus - Congress had rescinded the Supreme Court's authority to hear writs of habeas corpus. Congress can remove or limit appellate jurisdiction in any way they choose.

b. Other Federal Courts - Est. by Congress
Their jurisdiction is established by Congress.

3. Self-Imposed Judicial Constraints a. Ripeness (When?) (Longshoremen)

Longshoremen Case - Alaska fishermen. Resident aliens of the United States working in union jobs. Their jobs required them to go to Alaska, a territory, for several weeks each year during the height of the fishing season and then come back to California. The federal government announced that if resident aliens left the 48 United States that when they tried to come back they would be subject to denial of re-entry into the U.S. These people are concerned about what will happen and file a lawsuit. The court says this issue is not ripe for adjudication. The court says they receive so many cases they can only take cases where there is truly a case or controversy going on. Can't take hypothetical cases. Will hear only cases that involve actual ripe controversies.

Nothing in the Constitution places this restraint on the Court. It is self-imposed.

b. Standing (Who?) (Mellon)
Massachusetts v. Mellon and Frothingham v. Mellon - challenge of a federal appropriation. Massachusetts was held not to have standing. They were not a party and could not stand in place of their taxpayers. They were not being deprived of any funds. Mellon was held not to have standing by just being a federal taxpayer without more. Too remote. If we allowed being a federal taxpayer being sufficient to give standing, there would be no point in the standing rule. Anyone could challenge anything.


State or local level challenging a local program, being a taxpayer may give standing at the local level. May have standing to challenge a legislative act if the challenge addresses a federal constitutional issue. (Valley Forge Christian College Case) Flast v. Cohen - says a federal taxpayer can challenge a congressional appropriation if in addition to being a taxpayer, he alleges violations of a federal constitutional provision. In Flast v. Cohen, it dealt with a legislative appropriation. In Valley Forge, the cases are distinguished. It wasn't the legislature, it was the Department of Interior, that was the difference. Essentially the court didn't want to follow the Flast v. Cohen rationale but didn't want to actually overrule it. Flast v. Cohen - J. Brandeis wrote guidelines: p. 81

The court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions "is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."

Sweetheart Suits - Challenging the constitutionality of the window tinting law. Talk to the attorney general and he agrees the law is ridiculous. He suggests that you file a suit and tells you he won't put up much of a defense. The problem is that people are being denied adequate representation. The best way in our adversary system to get a good sound decision on a case is to present both sides fully and vigorously. In a sweetheart suit, one side is not being given adequate representation. The court and the public at large is being denied having the benefit of having a constitutional decision made on a full consideration of the merits. The proper merits haven't been presented.

2. The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it." "It is not the habit of the court to decide questions of a constitutional law in advance of the necessity of deciding it."

They will not decide a case until it comes to the point where it absolutely has to. If a case could be decided on statutory grounds, the court will not look at the constitutional issues. Ex. Challenging the window tinting law in that it doesn't really apply to you because your windows are rose tinted but also that it to the extent it does, it interferes with your basic right to privacy under the 14th Amendment and is therefore unconstitutional. The court will not consider the constitutional question in advance of the necessity of deciding it. If they can decide the case on the statutory issue alone, they don't have to decide whether the statute was constitutional. On the other hand, they say there is no way to decide on the statute, they have to consider the constitutional issue.

3. The Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."

4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.

Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property rights.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

7. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."

4. Issues Affecting Judiciary

a. Strict v. Loose Construction
Strict construction - Hugo Black most well known for strict construction. Take the words literally and give them that meaning and no other.

Loose construction - a few things implied in the words that give the language less than a literal interpretation that strict constructionists give. Frankfurter most well known for loose construction.

b. Activism v. Restraint
Judicial restraint - except in areas where the constitution is fairly explicit about limiting the power of government, the function of the court is to interpret the laws and let the elected Congress determine what the laws would be. Bork was an advocate of judicial restraint. Many activist decisions in civil rights areas were made because the legislative branch was dragging its feet to do something about the injustices that came about. They started passing activist remedies.

c. Original Intent v. Evolutionary Meaning
(Interpretative v. Non-Interpretative Review)

Ed Meese believed in interpreting the constitution as it was written. If there was any ambiguity in the words, it was up to the intent of those who wrote it. Justice Brennan said we can not interpret the constitution according to the words of a world that is dead and gone, but rather each generation must give its own meaning to the constitution and we need to interpret the constitution according to an evolutionary standard that is the inevitable and true meaning of the text.

We tend to think that strict construction, original intent and judicial restraint all mean the same thing. Not necessarily. Generally speaking today, those who are politically conservative are going to be advocating strict construction, restraint and original intent. Those who are liberal will generally be advocating the opposite. This is not always true. Hugo Black was the most strict constructionist. However, he repeatedly struck down laws of congress as violative of free speech. In that area, he was very much an activist because he believes the law was to be interpreted strictly, and when statutes violated the constitution he would strike them down. His strict construction made him into an activist. Original intent and strict construction don't always go together. Interpret the constitution strictly where the framers intended it to be interpreted strictly and in other parts, like the necessary and proper clause, where it was intended to be interpreted more loosely, to be faithful to the original intent, should interpret it more loosely.

How would you apply today's modern technology, such as air travel, to the framer's intent? You would take the framers, with the basic values they hold, and place them in today's society and given those values, how would they apply those values today?

Fifty years ago the issue was how to interpret the constitution. Today, it is whether to interpret the constitution.

d. Natural Law v. Positive Law
This issue will come up in the confirmation hearings for Judge Clarence Thomas. Thomas believes that natural law is a limiting factor on a judge that limits both Congress' and judges from exceeding their due restraint. The idea of positive law is simply that law is the creation of man. Law is law, not because God had established law and right and wrong, but rather law is law because the highest human authority of the state has made it law and has the power to back it up. Natural law says there is something higher than this.

Natural law permeates the constitution.

e. Liberal v. Conservative


1. Found mostly in Article I, Sec. 8

a. Includes Implied and Express Powers (McCulloch)

b. Implied Powers
1. Congress need not address entire problem
The fact that a particular portion of a statute does not totally eradicate the problem, such as housing discrimination in single family housing, not multi-family units. Addressing problems in a piecemeal way is part of how Congress works.

2. Congress need not be only means of solving problem
Necessary and proper. McCulloch and interstate commerce cases. Is this necessary? By necessary, Justice Marshall says we don't mean "absolutely necessary". There can be other means by which it can be done. Doesn't have to be the only means or not even the most efficient means.

3. Congress may make findings of fact
Jacobson v. Massachusetts - Vaccination Case - findings of fact about vaccinations. Split of medical authority. Majority said vaccination was a good idea. Other doctors said it was not effective and could be dangerous. When there is a split of authority, the legislature is free to believe some experts and not others. They are not always required to go by the majority. They can choose to believe the minority of experts.

a. Judicial Standard of Review: Reasonability

The standard the court uses in reviewing a legislative finding of fact is not whether it is right or wrong, but whether it is reasonable. Usually, the legislature has made a thorough fact finding decision. The court is not in as good a position to do so. The court says if the legislature has acted in such a way that it is obvious their motives are wrong or they are trying to protect local industry, etc., if it is obvious they considered factors they had no right to consider, their fact finding is unreasonable.

2. Delegation of Legislative Authority
a. Congress may not delegate legislative authority That which the people have said in the constitution is a function of Congress will remain a function of Congress.

b. But may delegate rule-making authority if reasonably clear guidelines. (Panama Refining, Schechter Poultry)

The test is "Has Congress set forth some guidelines?" The guidelines must be reasonably clear.

c. Application of Non-Delegation Rule at state level depends on state law. At the state level, the doctrine will be applied more strictly than at the federal level. In the majority of cases, about the same. In very few cases, not as strictly. In some cases, the doctrine of non-delegation may not apply at all in state courts and various branches and levels of state government. Probably less need for delegating at state level than federal level.

3. Power to Investigate
a. Implied
Nothing in the Constitution says Congress has the power to investigate. Implied from necessary and proper clause. Obviously, they can't make good laws if they don't know what is going on. They must have the facts. Thus, they must be able to conduct investigations.

b. But may not infringe fundamental rights without good reason (Gibson v. Florida)
Fundamental rights - free speech, freedom of association, etc. Gibson v. Florida - The state of Florida wanted a list of NAACP members to investigate communist connections or, possibly to harass the NAACP. The court said that before they could conduct this investigation and require them to disclose this kind of information, must show there is some need for it. The state tried to show that some members were involved in communist activities. This wasn't enough. Haven't showed that one of the communist front organizations had infiltrated or influenced the organization. Haven't shown whether they were former members, long-term or short term members, active or inactive, etc. The court needs more of a connection and a greater need and relevance of the information before the state will be allowed to infringe upon these people's rights in this way. The court said the state must show the connection before they would let them have the list. The state said if they would let them have the list first they would then show the connection.

4. Speech and Debate
a. Applies to Congressmen & Aides while pursuing legislative functions (Proxmire)
Proxmire - Golden Fleece Newsletter. When they go beyond those legislative functions, such as publishing not directly related to legislation, the speech and debate clause no longer protects them and they are subject to libel and slander suits.

(Article II)

1. Appointment & Removal
a. Removal broader
Power to appoint is limited by congressional legislation and is usually subject to confirmation by the legislature. Even in cases where confirmation is required, it isn't required for removal. Ex. Postmaster general, secretary of defense. Senate may confirm but is still subject to being fired by the President. The Senate can do nothing except possibly refuse to confirm anyone else. There are some positions, such as the Federal Reserve Board, where the President has the power to make appointments. However, the terms are fixed by statute and the President may not have the power to remove. Cannot remove the Supreme Court justices he appoints.

b. Decision-making Employees
At the lower level, the power to appoint has been limited by Congress and it has been upheld as far as people in non- decision-making capacity. Civil service. Civil service protection is like tenure. They cannot be fired without good cause. Good cause could include the job is no longer needed, the funds have been cut back, incompetence on the job, etc. Before a person is fired, he is entitled to due process. Must show that good cause does exist in his being fired.

People who are in decision-making capacity, the President has the right to hire and fire these people solely on the basis of whether he wants them there or not. Personality clash, disagrees with their views, etc. It can be important that the President has people who share his views. In the lower level, the continuity and personal job security are more important. President can't remove someone for any reason.

There is no clear definition as to what is a decision-making employee.

2. Pardon

a. All federal offenses, including contempt (Grossman)

b. Can be before, during, after trial (Murphy v. Ford) Hamilton said in the Federalist, a well-timed pardon can be very important in quelling disturbance and unrest.

3. Executive Privilege
In the Nixon era, dealing with tapes and documents the administration claimed were privileged. The court rejected an absolute privilege. They then claimed that some things were privileged because of national security and were classified. The court said that merely stamping something classified, the court will not give absolute deference to the Executive's determination that this is a classified document. Too easy to abuse. The court will use an in camera proceeding and examine the documents and use a balancing test.

a. Balancing Test
1. Need for Privilege
2. Need for information

4. Foreign Affairs

a. Inherent as well as delegated (Curtiss-Wright) In many cases, powers are specifically delegated in the constitution that could be inherent as a means of their distribution. It is clear that the federal government has the power to negotiate treaties. It wouldn't be clear from a natural law standpoint whether that power should rest with the executive or with the legislature. Those matters are set forth in the constitution so we know who. These areas in foreign affairs is a shared power. Ex. Congress has the power to declare war but the President is the commander in chief of the armed forces. Congress has the power to raise and support armies and control the purse strings but the President is responsible for the day to day activities of the war. War Powers Act is a good faith effort to try and delineate how the constitution divides those powers.

b. Therefore broader (Dames & Moore)
The power of foreign affairs is broader than the power the President has in domestic affairs. Dames & Moore v. Reagan - involved the release of Iranian assets for the release of hostages. People who had claims against the Iranians were not able to make them. However, if the President did not have the authority to make that type of commitment to Iran, his ability to negotiate the release of the hostages would have been severely hampered. To deny that kind of authority to the President would greatly restrain the United States in foreign affairs.

5. War & Emergencies

a. Military Courts (Milligan)
Milligan - military courts tried him for expressing southern sentiment. He was sentenced to be hanged. He appealed. The supreme court ruled that the military courts, while they are valid courts and predate the constitution (military courts are Article II courts). As far as jurisdiction, their jurisdiction does not extend to civilians in areas where civilian courts are in existence and functioning. Therefore, the military court lacked authority to try Milligan.

b. Effect on contract clause (Blaisdell)
Mortgage moratorium case - While this mortgage moratorium was an impairment of the obligation of contracts, it meant the bank could not foreclose for non-payment, they had to wait for the moratorium to be up. The court said that given the emergency of the national depression, this impairment of an obligation of contracts will be considered reasonable. The word "reasonable" is not written into Article I that says that no state shall impair the obligation of contracts. The court writes this in.

c. Effect on civil liberties (Korematsu)
Based upon a determination by members of the administration that there were some Japanese in the nation that could be disloyal and since there was a possible or reasonable danger that if an attack were to take place on the coast of California, Japanese Americans in the area would join in the attack. Under this national emergency situation, the government action to remedy the problem, even though it involved a substantial curtailment of civil liberties for the Japanese, it was permissible.


1. Tenth Amendment

a. Original purpose & meaning

b. Usery
If the federal government can apply these laws to the states, as to their own state employees and the courthouse, then you really have the federal government telling the state when it can open their courthouse, types of condition, etc. If there is any area in which the state should decide in the running of its own institutions, the court said these minimum wage and hour laws cannot be applied to state governmental institution.

c. Garcia
Overrules Usery - decided around 1985. Rules that the Usery case was decided on the wrong basis. Governmental v. proprietary distinction is a vague distinction and one that is almost impossible to make. This will not be the test. Blackmun, in a 5-4 decision, overruling a 5-4 decision in Usery, says that ultimately the meaning of federalism means that the state finds the protection of various spheres of influence by the democratic process. By electing people to the legislature you vote to keep the federal government out of those areas. O'Connor dissented and said that was not her understanding of the meaning of federalism at all. There are certain areas that are off limits whether the majority of Congress thinks they are off limits or not.

2. Interstate Commerce - History
Article I, Sec. 8, one of the powers granted to the federal government is to regulate commerce in three areas: between states, foreign nations and with the Indian tribes. The category not mention is intrastate. It is implied that intrastate commerce is within the province of the states to regulate and not the federal government. General evolution in history of the development of the interpretation of the commerce clause.

a. 1824 Gibbons; Interstate is supreme, navigation is commerce
Federal franchise v. state franchise to conduct steamboats across the Hudson River between New York and New Jersey. The court said that (1) navigation is commerce and thus (2) the federal government's right to regulate interstate commerce is supreme and takes precedence over the state's right to regulate that commerce.

b. 1903 Champion; Power over interstate commerce is unlimited.
Champion v. Ames (Lottery Case) - The court ruled that the power of Congress over interstate commerce is unlimited. They can regulate interstate commerce in any way they see fit. Their motive is not the issue.

c. 1918 Hammer v. Dagenhart; production is not commerce The court makes the distinction that the federal government can regulate commerce but production is not commerce. Commerce means the sale of things and so on, but as far as the manufacture of things, commerce succeeds to manufacture and is not part of it. The commerce is the selling part, not the manufacturing part. Since the constitution authorizes the regulation of interstate commerce, the use of that term commerce implies there is no authority to regulate production.

d. 1935 Schechter: Production which directly affects interstate commerce may be regulated. Can't regulate production but can regulate commerce. Sometimes it may be necessary to regulate production in order to effectuate our regulation of commerce. If that production directly affects commerce, then we can regulate it.

e. 1937 Jones and Laughlin Steel; Direct/Indirect Test Amended; Production may be regulated if affects commerce substantially.
One of the most famous cases. Huge conglomerate with refining plants all across the country with things being shipped across the country. The court said that if they had strikes in their factories it would paralyze interstate commerce. A national labor relations board ruling that they should be required to submit to good faith bargaining as a means of avoiding strikes, this was a regulation of production that was necessary in order to regulate commerce. In this unique situation, the production substantially affects commerce. They do away with the direct- indirect test in Schechter. The test now is not whether the effect on commerce is direct or indirect, the test is whether the effect is substantial.

f. 1941 Darby: Production for commerce may be regulated Moved away from the substantial test. Now the question is whether the production is intended for commerce. If you are producing these goods intending that they be used in commerce, then the regulation on that production, whether it is a child labor regulation or minimum wage regulation, the regulation will be upheld so long as it involves the production of goods intended for commerce.

g. 1942 Wickard: Production may be regulated if potentially affects commerce.
Farmer who raised wheat and fed the excess to his own pigs on his own farm. The court said if he hadn't done that he would have had to buy some and that would have affected commerce. Production may be regulated if it potentially affects commerce.

3. Interstate Commerce - Current Doctrine

a. Congressional authority over interstate commerce is supreme
b. Federal/State powers over commerce are: (1) exclusively federal, (2) exclusively state, or (3) concurrent.
c. State can't regulate that which directly affects interstate commerce, because purpose of commerce clause is to preserve free flow of commerce.
d. State can regulate that which only indirectly affects interstate commerce unless Congress has preempted field.

e. Whether Congress has preempted the field depends on:

1. Congressional intent
2. Extensiveness of regulation
3. Whether state regulation could make federal regulation more difficult

4. Nature of industry

f. Court will sustain exercise of state police power if
1. It has rational basis
2. It does not substantially inhibit interstate commerce (Balancing test between these two)
3. Less restrictive means (sometimes)

g. Court will not sustain exercise of police power in commerce, if purpose or effect is simply to protect against outside competition.

h. The state may not deny non-residents the use of its facilities or privileges granted to it's residents. However, state may make interstate commerce pay it's own way.

i. The federal government may regulate intrastate commerce, if necessary to regulate interstate commerce (Houston Railway Case).

This case involved Texas' maximum fares being lower than the Interstate Commerce Commission's minimum fares. The question was what to do about fees from Dallas to Abilene affecting rates from Dallas to outside the state. The court said it was necessary to regulate some of the intrastate rates as well. The court found the federal government had the authority to do that.

4. Treaty Power
a. An inherent power that is divided between the executive and legislative branches. President makes and Senate confirms.
b. Treaty Power is supreme over state statutes and state constitution (Supremacy Clause - Art. 6 Sec. 2)
c. Executive agreements and conventions have the same legal effect as treaties even though they need not be submitted to the Senate for ratification.

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