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IDAAC
 Issue
 Description (if rule is not clear, talk about a bunch) (if clear rule, the D becomes R)
o Subissue
o Subdescription
o Subissue
o Subdescription
 Analysis (decide which one is best)
 Application (apply it to case)
 Conclusion
Big Picture – not bottom line
Analyze the laws and summaries arguments, resolve them
Explain the law – and even choose the law that applies best
If Plaintiff/Defendant discourse, make sure they relate 1 to 1. Arguments and responses to those arguments.

Standing
Issue: Does the plaintiff have the ability to bring this suit to a federal court?

Description: In order to bring suit to the Supreme Court, a plaintiff must show for each claim that an injury in fact that is fairly
traceable to the defendant and is likely to be redressed by a decree in the plaintiff’s favor. Additionally, the plaintiff’s injury
must be arguably within the zone of interests protected and regulated by the statutory or constitutional provision at issue
and not be too generalized – that is, not shared by all or almost all citizens.

Analysis: To have standing to bring a lawsuit, plaintiffs must sufficiently allege that they have personally suffered a distinct
injury, and the chain of causation linking that injury to the actions of a defendant must not be attenuated (Allen v. Wright).
An injury in fact can be economic, environmental, or aesthetic among others (Assc. of Data Processing Servs. Orgs. v.
Camp).

 First, it must be assumed that the wrongful conduct alleged by the plaintiff is true or actually happened.
 Injury-in-Fact: With regards to an injury in fact, the plaintiff must show that the injury was
o Concrete, distinct and palpable. It must not be abstract or conjectural.
 In SCRAP, the Court found a sufficiently distinct and concrete harm to the plaintiffs where a general rate
increase would lead to the increased use of non-recyclable commodities and thus more trash in national parks.
Increased trash in national parks is a concrete and distinct harm.
o Actual or immediate; not remote
 The Court in Clapper v. Amnesty International found no actual or immediate harm where the plaintiffs alleged
that the Government’s surveillance activities targeted their clients and made it difficult to conduct phone
conversations. The plaintiffs failed to show the Government was actually going to or currently were surveilling
their clients.
 The stigma of going to a segregated school was found to be sufficiently concrete, but too remote in Allen v.
Wright. The Court there found that there was no actual or immediate harm to the plaintiffs because their
children were not the ones going to segregated schools. Also, the harm of black children not being able to
receive an education in a desegregated school, thus the Government failing to do its job was too remote a
harm.
o Personal, not generalized.

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 In Sierra Club v. Norton, the Court held that an injury was not personalized where the injury was not specifically
suffered by the plaintiff claiming the injury. The plaintiff could not show that themselves or any members of their
organization were injured.
 In Lujan, the plaintiff was not currently in the national parks nor had any plans to go to the national parks in the
near future. Thus, the injury was not personalized against the plaintiff themselves. The injury was arguably
suffered by all citizens generally.
o These requirements are in place to quickly reduce the number of cases the Supreme Court can hear and to ensure
that the judiciary only decides on the rights of individuals, leaving the rights of the general public to be decided upon
by the executive and legislative branches.
 sometimes particularized vs generalized sometimes classified as an article 3 standard – 3 factors or just useful criteria
o can go through and say meet all three or used as criteria to help find criteria without all needing to be met (akins)

 Traceability and Redressability: There must be a causal connection between the injury and the complained of conduct,
that is, the conduct must have caused the injury in fact. Furthermore, the injury must be likely to be redressed by a
favorable decision from the Court.
o Traceability and redressability are arguably indistinguishable.
 If a particular conduct is causing the harm, then the harm is traceable to the conduct. It the harm is not
traceable to some conduct, then the Court can’t possibly redress it.
 In Laidlaw, a factory was polluting a river the plaintiff wanted to use for recreation. However, the factory
was shut down, changing its own conduct before the case could be decided. Therefore, the conduct is no
longer redressable.
o The chain of causation connecting the harm and the conduct must be direct and immediate, not too attenuated and
speculative. Whether an injury is speculative depends on how it is characterized.
 Where an injury is characterized as the denial of an opportunity, Courts tend to find standing.
 In North East Florida Contractors, the Court characterized the injury as a denial of an opportunity to
compete and found there was standing in that case.
 In the EKWRO case, the Court found no traceability here because it could not be determined that the
hospital changed its policy on providing care to poor people as a result of the new tax scheme. There were
several other reasons why the hospital might have changed its policy. Here, the Court chose to
characterize the injury as a refusal to grant medical care rather than an denial of an opportunity to receive
medical care.
 In Bakke and Gratz, the Court characterized the injury of not being admitted into a university as a denial of
an opportunity to compete with other applicants and found standing there. Had this been characterized as
an denial of admission, it would not have had standing.
 The probability of each link in the chain can be multiplied together to find the overall probability that the conduct
is the cause of the injury. Although courts don’t actually do this, it conceptualizes the idea that too many links
might be cause to question the certainty that the conduct is the actual cause of the injury.
o A favorable decision from the Court must be likely to redress the injury.
 In Massachusetts v. EPA, the Court found that the injury was likely to be redressable by the Court because if
the plaintiff wins and the EPA is forced to regulate pollution it may decrease worldwide greenhouse gases, and
this is enough for standing. The Court found the amount of greenhouse gases output by the United States was
enough to have an impact on worldwide greenhouse gas levels, and thus there was a great enough effect for
the Court to be able to redress the injury.
 The Court found no redressability in Linda RS because it was too speculative to say that sending the father to
jail would make him pay child support. He could very well go to jail and still not pay child support. Redressability
here depended on a third party’s independent actions.

 Procedural Injuries occur where plaintiffs are deprived of a right to a certain procedure allowed for in a statute.

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o Justice Scalia wrote in the plurality opinion for the Lujan case that Congress cannot provide new methods of
obtaining standing through procedural rights where no standing existed before. The plaintiff must have already had
a concrete injury where Congress creates a right to standing.
o However, where Congress has expressly stated in a statute that there is a casual chain between an injury and
some conduct, the Court must respect it. Congress is better able to predict such chains and the Court must defer to
this expertise (Footnote 7).
 If u have a procedural right that isn’t irrelevant it may reduce the burden to show redressability. The example
was that a person whose land is going to be flooded by a dam project and who has a procedural right doesn’t
need to meet same burdens of traceability/redressability or immediacy in that situation. Scalia is saying that in
terms of redressability it is that the government is trying to argue is that yes, land will be flooded and the
redress is to order the government to do environmental impact statement but it won’t really make a difference.
Congress thought it matters so who is the court to say it doesn’t?
 The narrow view is that procedural right is the right to have an agency follow a particular procedure and it says
government can’t argue it’s too remote an injury)
o Furthermore, Kennedy’s concurrence stated that Congress can provide new ways of obtaining standing
procedurally if they define injuries and articulate chains of causation which give rise to a case or controversy where
none existed before. In this way, Congress isn’t creating a full path to standing, but rather providing some guidance
as to where standing could be found. This only applies where right to sue given to a class smaller then general
public and there’s some injury that could occur to that class.
o The violation of a bare procedural right is not always enough to constitute a harm. The plaintiff must also show an
actual, concrete injury. In some way, the procedural right must have caused or been related to a personal injury. In
Spokeo v. Robins, consumer reporting agencies had to follow reasonable procedures to ensure consumer
information was maximally accurate. Robins alleged the information reported by Spokeo was inaccurate with
regards to his education, family situation, and economic status.
 Although the information was inaccurate, Justice Alito determined that it did not rise to the level of an injury
because the information wasn’t particularly damning. In fact, the inaccurate information was more favorable
than the accurate information.
 Naturally, Justice Ginsburg dissented saying that there was an actual harm to his employment prospects
because the inaccurate information would have an effect on his ability to find a job. Again, how the court
characterizes the injury dictates the success of finding an injury-in-fact.
o MA v EPA: procedural right = right to sue (any citizen may sue) not the kind fn 7 talking about. no relationship
whether harm is traceable or redressable or too remote. two problems: (1) no logical connection b/t procedural right
and reduced burden; (2)

Political Questions
Issue: Whether the case presents a political question best addressed by the other branches of government?

Description: Political questions are issues which are not judiciable by the courts because the issue is better addressed by
the powers and responsibilities of another branch, or for which the judicial branch cannot provide a judicial answer.
Axiomatically, political questions are best suited for resolution by the political branches.

Analysis:
 Political Question Doctrine Standards
o In his Baker v. Carr majority opinion, Justice Brennan enumerated six factors in determining whether the political
question doctrine applies:
1. whether there is a textually demonstrable constitutional commitment of the issue to a coordinate political
department;
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2.a lack of judicially discoverable and manageable standards for resolving it;
3.the impossibility of deciding without an initial policy determination of a kind of clearly nonjudicial discretion;
4.the impossibility of a court’s undertaking independent resolution without expressing lack of respect due to
coordinate branches of government;
5. an unusual need for questioning adherence to a political decision already made; and
6. the potential for embarrassment from multifarious pronouncements by various departments on one question.
o There is no case in which the court has found a political question without one of the first three factors. The latter
three are neither necessary nor sufficient to finding a political question. They are the “comity” factors.
 The comity factors indicate that it is more important for the branches of government to speak with one voice or
consider extra constitutional considerations, than to dictate exactly what the law is. In particular, these factors
aim to maintain a sort of respect between the branches.
 The first factor is a constitutional issue, and the second and third factors are inherent limitations on the judiciary
with regards to law and policy.
 With regards to the first factor, the Court looks to the constitution to determine whether the text says the
issue in the case is another branch’s responsibility to address.
 The second factor asks if the court is getting itself involved in a situation where it is going to have to
manage the issue over and over again to ensure it’s being enforced, if the issue is derivable from a source
of law, and if its applicable without a need for a value judgment. If there are no sources of law, then the
court cannot look at the issue. That is, the Court is avoiding getting involved with policy issues and
grounding it’s decision in law alone. The same is true for the third factor.
o The goals of these factors are evident in congressional district apportionment cases.
 In Baker v. Carr, the issue before the Court was whether Tennessee’s failure to reapportion seats every 10
years amounted to a violation of the Equal Protection Clause? The Court found no political question here
because the Equal Protection Clause did not implicate a political question. There was not a question of whether
the state’s actions were right, but whether they should have acted at all. That is, it did not ask the court to
determine if the number of legislators apportioned to each district was correct because that would be a political
question where Congress is responsible for resolving that issue.
 In Vieth v. Jubelirer, the Court found a political question in a gerrymandering case because there were no
judicially discernible and manageable standards for adjudicating the claims. It would be too difficult to know
where to draw the line. The tests set out by Bandamere are indeterminant and seem to require the Court to ask
whether the gerrymander is fair. Fairness is not a judiciable standard. This case overruled Bandamere which
said gerrymandering was judiciable.

 Commitment to a Coordinate Branch Issues

o The first factor asks whether there is a textually demonstrable constitutional commitment of the issue to a
coordinate political branch.
o The Court in Nixon v. US found that there was a political question because the Constitution created a textual
commitment to the Senate to “try” impeachments, whatever “try” was intended to mean. Therefore, this was a
question that was not justiciable by the Court.
o There was a political question in Goldwater v. Carter, as well. The Court found that the Constitution says that the
President needs the approval of the Senate to make a treaty, but it did not say what was needed to terminate one.
Thus, there is a textual commitment to the Senate to address the issue of President Carter terminating a treaty with
Taiwan.
 This might potentially be a wrong decision. It seems like there is a constitutional interpretation question here,
which is one the Court can decide. Furthermore, the Constitution doesn’t explicitly commit the Senate to deal
with termination of treaties. However, the Court might have found here an implicit or constructive commitment.
 Implicit commitment occurs where the commitment is not specifically stated by the text, but the text
nevertheless infers such a commitment.

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 Constructive commitment is even less than implicit commitment but the Court still finds an allusion to a
commitment to the other branches.
o The Court found no political question in Bush v. Gore. They invoked the Equal Protection Clause, suggesting they
were protection the idea that each vote counts and counts and equal amount. Arguably, there was a commitment to
coordinate branch under Article II which leaves to the state legislatures the responsibility of determining how
electors are appointed. The dissent argues the Court should not have intervened in a State’s own regime for
choosing electors.

Commerce Clause
Issue: Does Congress have the power under the Commerce Clause to take the action it has?

Description: Article I, Sec. 2, Clause 3 provides to Congress the power to regulate commerce with foreign nations and
among the states. Commerce is anything involving trade, including transportation. Congress has plenary power over goods,
channels, and instrumentalities of interstate commerce. Congress can also regulate any activity which has a substantial
effect on interstate commerce.
In Gibbons v. Ogden, Justice Marshall defined the internal and external limits of Congress’s commerce powers. As
internal limits: Congress can regulate all commercial intercourse (This is broader than just goods and trade. If it is
commercial in nature, then Congress can regulate it.), Congress can regulate any commerce between and within states as
long as it has something to do with interstate commerce, and Congress has plenary powers to control commerce as long as
it is a means to and end that it has a right to regulate. As an external limit, Congress can regulate anything that is
reasonably regarded as interstate or foreign commerce. Justice Marshall found that once Congress’s ends has been
established, the Court has no place to decide how it achieves those ends.

Analysis:
 If Congress is regulating goods in interstate commerce, or channels and instrumentalities of interstate commerce, then
the Court will defer Congress because Congress has plenary power to regulate these things.
o In U.S. v. Darby, Congress created the Federal Minimum Wage Law which prohibited shipping goods in interstate
commerce if employees who manufactured them were paid less than minimum wage. It also prohibited employment
of workers paid less than minimum wage to produce goods that were sent in interstate commerce.
 The Court found that Congress could regulate both the shipping of goods from these manufacturers and the
employment of underpaid employee because Congress has plenary powers over goods, channels, and
instrumentalities of interstate commerce. These goods entered interstate commerce, so Congress could
regulate their manufacture.
 Bootstrapping Principle:
 Congress can regulate wages by prohibiting shipping goods made by underemployed workers because it
is an allowed means to the ends of prohibiting substandard working conditions. The Court says that
Congress can regulate something that it could not normally regulate as long as that regulation is done to
facilitate the regulation of something that Congress does have the authority to regulate.
 Essentially, Congress can get away with regulating something it can’t normally regulate by creating a
“straw goal.” That is, saying it is regulating interstate commerce, when it’s real goal to regulate wages, for
example.

 If the activity Congress is trying to regulate is not goods in interstate commerce, or channels and instrumentalities of
interstate commerce, then the Court must determine if the activity substantially affects interstate commerce.
o The Court in U.S. v. Lopez articulated a new standard for evaluating a substantial effect on commerce. The Court
asks three questions:
 Is the activity economic or commercial in nature?

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 Has Congress provided findings to show that it is economic or commercial in nature?
 Is the activity other than one that has been traditionally left to the states?
o If the answer is yes to all three questions, the answer is easy – the Court should defer to Congress. However, it is
unclear whether the Court should defer to Congress when the answers are mixed.
 The Lopez majority believed the most dispositive factor was whether the activity was economic or commercial
in nature. If the Court found that the activity was economic or commercial in nature, they were more likely to
give Congress deference.
 An activity is economic or commercial in nature when it involves a market transaction – if it is being sold
and bought, if there is an exchange of payment for something else.
 Police powers of states – education, law enforcement, etc. – are not economic in nature.
 On the other hand, the concurrence found the most important factor to be whether the activity is other than one
that has been traditionally left to the states.
 It is unclear where the line should be drawn with regards to what has been “traditionally” left to the states.
 Such a line might be just a few years ago, or more broadly, hundreds of years ago. It may be drawn by the
Constitution, by statute, or by precedent.
 The Lopez majority and concurrence drew the line to include family law, criminal law, and education. The
concurrence declaring that education is a “well-established” state concern, whatever that means.
 The concurrence also cited Federalist Paper No. 46 in saying that the citizens must be able to know which
government, state or federal, to hold accountable for which functions. However, it is muddy, even to the
Court, which functions are traditionally state functions where certain provisions of the Constitution have
been invoked to allow Congress to creep into state legislatures (NFIB v. Sebelius, for example).
 Finally, since U.S. v. Morrison, the Court has usually found that whether Congress has provided findings
adequate to show that the activity is economic or commercial is a tie-breaking factor when the Court could find
either way.
 Moreover, the “’traditionally’ left to states” factor provides no clear determination and any finding against this
factor would still rely upon the other two to be dispositive. Since most courts tend to follow the majority’s belief
and since it provides the clearest (but not crystal clear) answer, the economic or commercial factor should be
given the greatest weight.
o So, if the answer is yes to all three questions, then the Court defers to Congress and applies a Rational Basis Test.
 The Rational Basis Test asks if it could be rationally concluded that, in the aggregate of all persons who engage
in that activity, the activity has some conceivable rational relationship with an impact on interstate commerce?
 The Court in Wickard v. Filburn found that Wickard’s own growing and subsistent consumption of wheat
did not really affect interstate commerce. However, if every wheat farmer like Wickard consumed only their
own wheat, it would have a substantial effect on interstate commerce by affecting market prices
nationwide. Thus, it could be rationally concluded that in the aggregate, the activity substantially affects
interstate commerce and Congress could regulate it.
 Similarly, in Heart of Atlanta, the Court found that Congress could regulate hotels and motels because, in
the aggregate, denying African Americans the ability to patronize these establishments substantially
affects interstate commerce. Even though hotel operation was local, interstate commerce feels the pinch,
so it doesn’t matter how local the operation is that causes the pinch, it can be regulated where such a
significant connection exists. Also, if all hotels discriminated (and they did), it would substantially affect
interstate commerce.
 Furthermore, in Katzenbach v. McClung the Court held that Congress can regulate because the Civil
Rights Act applies to any restaurant where a substantial portion of its food has moved in commerce.
Restaurant discrimination resulted in fewer interstate goods sales and interstate travel was directly
obstructed by it. This shows a sufficient connection between the discrimination and movement of interstate
commerce to allow federal intervention.

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 The substantial effects test cannot be used to regulate non-activities. Congress’s regulation of commerce must
regulate an already occurring activity. For example, Congress cannot compel individuals or states to take part
in buying health insurance or pay a penalty fine and call it regulating interstate commerce (NFIB v. Sebelius).
o Finally, if the answer to all three questions is no, the Court may ignore Lopez altogether and ask whether the
activity is part of a larger regulatory scheme.
 In Gonzales v. Raich, the Court held that Congress can regulate purely intrastate activity that isn’t commercial if
it concludes that the failure to regulate such an active would undercut a larger regulatory scheme. Specifically
in Raich, Congress can regulate the private cultivation and use of medical marijuana because if it didn’t, it
would prevent Congress from otherwise regulating the market.
 Additionally, in his Raich concurrence, Justice Scalia suggested that Darby Bootstrapping Principle could be
used to allow Congress to regulate something it normally could not have under the guise of its Commerce
Clause power. This is a potentially dangerous principle because it could allow Congress to regulate virtually
anything if it could successfully convince the Court it is just regulating commerce.

Spending and Taxing Power

Issue: Did Congress exceed its spending and taxing power?

Description: Article I, Section 8 of the U.S. Constitution says that Congress has the power to lay taxes, duties, imposts, and
excises to pay the debts and provide for the common defense and general welfare. This is Congress’s Taxing and Spending
power. Congress may not use it’s Taxing and Spending powers to coerce action or where it is not in the interest of the
general welfare. The general welfare is considered the police power. States have always had police power to the extent
they’re not preempted by federal law. Congress has no police power except under the Spending and Taxing Power.
Spending is not sovereign in nature because the federal government needs to be able to run the government, so buying and
selling is not a use of sovereign powers because someone needs to be able to voluntarily sell. States do have sovereign
powers, however. The issue in Dole was whether the federal government can pay the states to do things under their
sovereign powers which Congress can’t normally do? Even if there were a sufficient relationship in Dole, relationship with
spending is direct because policing costs money so preventing drunk drivers means less police are needed. An argument
may be that maybe the federal government shouldn’t be able to this because we shouldn’t have competing sovereigns.

Analysis:
 If Congress has the power to regulate the activity that they are trying to tax, then the tax may be used as a
regulatory device rather than a revenue generating device. In particular, Congress may not regulate areas
traditionally left to the states, even if it’s for the general welfare (e.g. agriculture). However, if Congress does not
already have that regulatory power, the validity of the tax depends on its validity as a revenue raising measure
(Bailey v. Drexel Furniture; U.S. v. Butler).
o If the Court determines Congress does not have the regulatory power, the Court must use a two-pronged
test to determine if the tax was reasonably expected to raise revenue (NFIB v. Sebelius):
 Is the tax relative to income?
 Is it administered by the Treasury Department?
o This test really attempts to identify a tax. The Court seems to say that it’s easy to reason something is a tax
if, like many other taxes, it is relative to income and the Internal Revenue Service collects it. It would be
highly suspect if the Department of Justice or Department of Health and Human Services were collecting
the “tax.”
o In NFIB v. Sebelius, the tax was capped based on income and the cost of actually obtaining insurance, and
the tax was administered via the IRS (Treasury Department). Under the Court’s two-pronged
reasonableness test, the Affordable Care Act’s individual mandate appears to be a tax. The Court upheld
the individual mandate.
 Taxes may be conditional but they may not be coercive, even if it does raise revenue. That is, they may not compel
or force individuals to act. It cannot attempt to change behavior. Additionally, Congress may condition the way
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money is spent as long as it is for the general welfare and not coercive. Conditional spending can be used to induce
certain behavior (Steward Machine Co.). Coerciveness is based on the relationship between condition and national
project.
o Congress can make a tax conditional on individual action, so long as it does not force an individual to act.
 In Steward Machine Co., the Court found that the tax imposed on employers to fund welfare and
the tax credit provided to employers for contributing to a state unemployment compensation fund
was not coercive. It did not limit employers’ autonomy. They could either pay the full tax or
contribute to the fund and get a tax credit. It encouraged paying into state funds, but it didn’t rise to
the level of compulsion. Furthermore, the tax provided for the general welfare by giving assistance
to unemployed persons in the 1930s.
 In NFIB v. Sebelius, the Court found that the individual mandate was not coercive. Although
individuals who chose to opt out of purchasing health insurance were taxed, the tax was not so
much that there would be little other choice than to purchase insurance.
o Congress can condition the spending of federal funds in order to induce behavior, but it may not be
coercive (South Dakota v. Dole).
 In Dole, the Court laid out a test with four major parts to determine an acceptable use of
Congress’s Spending Power.
 The condition on spending must be in the pursuit of the general welfare.
 The conditions on spending must not be ambiguous, that is, they must be clear to the
states.
 The grant of fund, and the conditions for doing so, must be related to a national project or
program.
 The spending must not violate an independent provision of the Constitution.
 The fifth part, of course, is that it may not be coercive.
 The Dole Court found that Congress’s provision of funds to state if they raised the minimum driving
age to 21 was not coercive and thus constitutional. The condition was in pursuit of the general
welfare by attempting to increase safer highways and related to national efforts to make roadways
safer, the states were put on notice of the condition, and it didn’t violate other constitutional
provisions.
 Just because every state would acquiesce to the condition doesn’t mean it’s coercive – it’s
just a highly compelling reward.
 In NFIB v. Sebelius, the Medicaid Expansion provision of the Affordable Care Act was not
constitutional.
 Justice Roberts’s concurrence found that it coerced states to expand the Medicaid
program or risk losing all of their federal funding. He suggested states be given an opt-out
option.
 However, Justice Ginsburg argued in her dissent that Congress has the power to spend
federal money as it sees fit, and that the Act didn’t purport to take away existing funding,
only to not spend further on states which did not meet the condition.
 Arguably, the Medicaid Expansion fails not under the coercion prong, but under the
ambiguity prong. It is not clear to the states how funding would be withheld if they did not
comply with the provision.
 Proportionality approach?

10th Amendment
Issue: Whether Congress has exercised powers beyond those given to it by the Constitution?

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Description: The Tenth Amendment to the U.S. Constitution provides that the powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. It does not tell
Congress what it cannot do, but rather it reminds Congress it has only limited powers under the Constitution.

Analysis:
 Congress cannot attempt to get around the Tenth Amendment’s provision by commandeering state legislative
processes.
o Although Congress may override state laws by enacting federal laws (Supremacy Clause), Congress
cannot attempt to use state legislative processes to enact legislation.
o In New York v. U.S., Congress attempted to address low-level radioactive waste problems by encouraging
states to adopt programs to dispose of their own waste by creating three incentives: (1) a monetary
incentive to encourage states to open waste sites, (2) an access incentive to allow states without sites to be
denied access to other states’ sites, and (3) a take-title provision which required a state, upon request of a
waste-generator within its borders, to take title to the waste and pay damages to the generator for any harm
caused by the state’s failure to take title.
 The Court found that these incentives had the effect of commandeering state legislatures by giving
states no option but to implement the law. They were essentially coercive. Congress could urge
states to adopt their law through conditional spending under the Taxing and Spending Powers or
by offering states the choice of regulating that same activity according to federal regulations or
having state law preempted by federal regulations, if Congress has the power to regulate private
activities under the Commerce Clause.
 An implication of this holding is that this might restrict Congress’s ability to use its spending
power to induce states to act.
 Furthermore, Congress may not commandeer state executive processes to execute federal law.
o In Printz, Congress made it the responsibility of local law enforcement officers to run background checks
prior to gun sales. The Court held that state officials may not be used to implement federal policies.
Implementation of federal laws requires the discretion of state officials on how to allocate state funds and
officials to carry out federal law. When Congress takes away this discretion, there is the potential that fewer
resources may be left to state level function because Congress is not equipped to make that determination,
and states will be held accountable for the decisions of Congress.
o However, Congress can tell state officials how it wants the law executed at the state level.
 Allowing Congress to commandeer state processes creates confusion for citizens about who is to be held
accountable for government activities.

Separation of Powers
Issue: Does this Branch of government have the ability to exercise this type of power?

Description: The idea of separation of powers attempts to allocate certain responsibilities to each branch and to ensure no
one branch is too powerful or oversteps it’s co-equal power. It consists of a delicate balance of checking each other
branch’s power. Courts have used a number of approaches to analyze issues where either the president or Congress
seems to be exercising more power than what they have under different circumstances.

Analysis:
DOMESTIC AFFAIRS
 Formalist Approach (When Congress is embellishing its OWN power)
o The majorities in Chadha and Youngstown adopted a formalist approach.
 The Youngstown court asked,

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 What kind of power is the challenged action? Legislative, Executive or Judicial?
 Which branch took action? Legislative, Executive, or Judicial?
 If the answers to these questions did not match, the action was unconstitutional.
 The Chadha court went a step further and asked even if the kind of power matches the branch that
took the action, did they follow required procedures? If the answer was no, the action is
unconstitutional.
o The approach is useful in so far as it provides a clear answer. However, it is inflexible and impractical. It is
difficult to draw lines between the responsibilities of each branch because they tend to overlap and become
blurry. Congress and the President’s powers of war are a case in point.
 Functionalist Approach (When Congress is embellishing OTHER powers)
o Additionally, a different approach, the functionalist approach, was proposed by Justice White’s dissent in
Chadha. Justice White asked two questions:
 Did the action unduly embellish the power of one branch at the expense of another?
 Did the action interfere with the ability of any branch to carry out its constitutional responsibilities?
o If the answer to both questions is no, then the action was constitutional.
o This approach is useful for its increased flexibility in application. However, with flexibility comes a lack of
clarity. The questions here require the Court to do more analysis and allows for multiple outcomes. Some
justices may find no embellishment, while others certainly will. It may even play into the politics of justices.
It leaves no truly clear answer.
 Jackson Approach (Presidential Powers)
o In his Youngstown concurrence, Justice Jackson laid out yet another approach. It described three
situations where the president can act in domestic issues.
 First, with the express or implied authorization of Congress. In this situation, the President has the
maximum amount of power to carry out his actions because he is acting with power of both the
executive and legislative branches.
 Second, in the face of Congressional silence, also called the “Twilight Zone.” Here, where
Congress has neither disapproved nor approved of the President’s exercise of power, the action
lies in a state of limbo – acting with powers concurrent to Congress, not separate and distinct, and
without full authorization.
 Courts are hesitant to find a President’s action fits into the situation and try to avoid it
completely in their analysis, and the Court has never dealt with a case in this situation.
 The implication of this is that if a Court is unable to move a case into either of the other two
situations, it might just decide that it is a political question and refuse to rule on it. That is,
they might find there is no judicially discoverable or manageable standard.
o They might try to make it manageable by invoking a functionalist test but, again,
they avoid doing this because it requires a balancing act.
 If there is a case that the court finds does fit into this situation, the Court may look to
present exigencies and past practices.
o In Dames & Moore, the Court found the president’s action to be permissible
because it looked to past practices and found the president had entered into
similar binding agreements with foreign nations at least 10 times before.
o The Court may look to present exigencies to find if the current circumstances
warrants upholding presidential action, for example, in the face of a national
emergency.
 However, this consideration has been weakened. Where in Korematsu the
Court found presidential action in the twilight zone acceptable due to
national security concerns during World War II, the Youngstown Court
found no such rationale.
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 Finally, with the express or implied disapproval of Congress, or in opposition to Congress’s
authorization. The President has the least power in this situation because he is not backed by
Congress.
 Additionally, the president may act with prosecutorial discretion. Although Congress may make a law, as the
enforcer of laws, the president may decide not to prosecute those breaking the law. For example, President
Obama’s decision to not go after marijuana grown and sold within states, despite federal law saying otherwise. This
never changed the illegality of marijuana production and sales, he just chose not to fully enforce it.

FOREIGN AFFAIRS
 The President has greatest power when he is dealing with foreign issues. The U.S. Constitution gives the President
the power to make treaties, receive ambassadors and other public ministers, and appoint ambassadors. The
President has special powers in foreign affairs due to the need for decisive action and a uniform policy with regard
to sensitive foreign relations. Furthermore, in Curtiss-Wright, Justice Southerland wrote that since the states have
never had foreign affairs powers, the President did not need to carve out powers for himself from state power.
Rather, foreign affairs powers are not limited by those enumerated in the Constitution.
 However, by that same token, Congress also retains certain powers over foreign affairs, including the power to
declare war, appropriate funds, and ratify treaties. Additionally, “Declare” war doesn’t mean “make” war. This
distinction allows the President to engage in limited military operations when necessity requires it, since he is the
Commander in Chief of the armed forces.
 Because of the concurrent powers of the President and Congress, and relative ambiguity of the President’s foreign
affairs powers, the Court has used the Jackson approach when dealing with these powers (Dames & Moore).
o With regards to Congressional approval, the Court has found self-executing treaties made with foreign
nations to be presumptively constitutional because they automatically become federal law.
o On the other hand, non-self-executing treaties may not necessarily be constitutional although entered into
by the president. These kinds of treaties lie in the Twilight Zone because they require Congressional action
to enact, even though constitutionally, the president can enter into it.
o Dispproval??

MILITARY POWERS
 The President also has broad powers with regards to the military, and unless Congress seems to say or act
otherwise, it’s presumed Congress supports the president. The President is the Commander-in-Chief and so he has
presumed military powers. However, Congress also has a number of military powers as well. Congress can raise an
army and maintain a Navy, declare war and make rules of war, and repel invasions and suppress insurrection.
 Prior to the War Powers Resolution, the President exercised his Commander-in-Chief powers to commit troops to
various conflicts for years without Congressional intervention or a declaration of war. The War Powers Resolution
limits the President by requiring the President to submit a report to Congress within 48 hours after engaging troops
without Congressional approval, to consult with Congress about troop commitments and to take troops out of
commitments within 60 days if Congress doesn't approve of the action.
o Even with the Resolution, it can be difficult to draw a clear line between a declaration of war and waging
war by committing troops (Curtiss-Wright). The Courts have used the Jackson approach to address these
issues. This is the best approach because of its flexibility amid the lack of clarity between Congress’s and
the President’s powers. Moreover, the judicial discretion this approach allows for is helpful because there
are overlapping powers.
 Analyze Jackson approach against issues.
 Analyze and say why functionalist approach isn’t appropriate.
 Analyze and say why formalist approach isn’t appropriate (leave to end).

MILITARY TRIBUNALS & DETENTION

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 The President may not suspend rights domestically when the country is enduring times of stress, emergency or war
(Youngstown, Ex parte McCardle, Ex parte Milligan). However, the President may detain enemy combatants (if
there is something close to a war declaration) and subject them to military tribunals, unless they are United States
citizens, in which case they are entitled to a trial in regular courts (Ex parte Milligan, Ex parte Quirin, Hamdi). United
States citizens are also entitled to habeus corpus to dispute their status as an enemy combatant (Hamdi,
Boumediene) but the President cannot define what crimes makes someone a war criminal or enemy combatant
(Hamdan).
 The functionalist and formalist approaches are the best approaches to use when analyzing these questions.

NON-DELEGATION DOCTRINE
 The issue is whether Congress’s transfer or grant of power violates the non-delegation doctrine. The non-delegation
doctrine aims to ensure that Congress is not giving away too much legislative power and that agencies are not
given more legislative power than they should have. Congress is able to delegate some legislative power so long as
it provides an intelligible principle for the agency to follow. However, the doctrine is seldom used today to strike
down an action unless Congress is trying to delegate legislative power to the President or executive power to
themselves (Bowsher v. Synar).

REMOVAL/APPOINTMENT POWER
 The U.S. Constitution gives the President the power to appoint principle officers with the advice and consent of the
Senate, while inferior officers are appointed by the President, the courts, or heads of departments on Congress’s
determination. Congress’s ability to appoint certain inferior officers seems to embellish their authority by allowing
them more control over the executive branch. As such, the formalist approach might be the best choice because it
requires asking if what kind of power is being exercises – is it actually executive? (Bowshar v. Synar)
 When the question is whether Congress has improperly retained power of an official in the executive branch, a
functionalist approach is best (Morrison v. Olson). The functionalist approach is best because it asks whether
Congress is embellishing its power and whether it interferes with another branch’s ability to exercise its power.
Scalia dissented that the functionalist approach was inappropriate. He argued that inferior officers are only fireable
for cause and must do what they are told to do by superior officers, and superior officers cannot be told what to do
but they are fireable at will.
 Generally, the court is more likely to use the formalist approach because the functionalist approach has often led to
bad outcomes in these cases. The formalist approach is often applied when Congress is embellishing its own
powers. The formalist approach asks what power the officer is using and in what branch. However, the court will
use the functionalist approach when Congress’s actions affects the powers of other branches.

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