Preface

Acknowledgments

Chapter 1:Judicial Review

§1.1

Introduction and Overview

§1.2

The Background of Marbury v. Madison

§1.2.1

Independence and the Articles of Confederation

§1.2.2

The First State Constitutions

§1.2.3

The Emergence of Judicial Review

§1.2.4

Creating a New National Government

§1.2.5

The Federalist Era, 1789-1801

§1.2.6

The Republican Assault on the Judiciary

§1.3

Marbury v. Madison: Judicial Review of the Coordinate Branches

§1.3.1

Judicial Review of Acts of Congress

§1.3.2

Judicial Review of Executive Conduct

§1.3.3

The Constitution as Paramount Law in Court

§1.3.4

Marshall’s Textual Defense of Judicial Review

§1.3.5

The Legitimacy of Judicial Review

§1.4

Federal Judicial Review of State Conduct

§1.4.1

Challenges Initiated in Federal Court

§1.4.2

Supreme Court Review of State Judgments

§1.4.3

Adequate and Independent State Grounds

What Constitutes an “Adequate” State Ground?

What Constitutes an “Independent” State Ground?

In Case of Doubt: Michigan v. Long

Cases Filed in the Federal Courts

§1.5

The Role of Judicial Review in a Democratic Society

§1.6

The Debate over Constitutional Interpretation

§1.6.1

Interpretivism versus Noninterpretivism

§1.6.2

Textualism

§1.6.3

Originalism

§1.6.4

Nonoriginalism

§1.6.5

Approaching Consensus

§1.6.6

Sources and Levels of Generality

§1.7

The Techniques of Constitutional Interpretation

§1.7.1

Constitutional Text

§1.7.2

Original Intent

§1.7.3

Constitutional Structure

§1.7.4

History and Tradition

§1.7.5

Fairness and Justice

§1.7.6

Political Theory

§1.7.7

Social Policy

§1.7.8

Foreign, International, and State Law

§1.7.9

Supreme Court Precedent

§1.8

Authoritativeness of Judicial Interpretations

§1.8.1

The Supreme Court’s Interpretations as Law

§1.8.2

Binding Effect on Other Courts

§1.8.3

Binding Effect on Nonjudicial Officials

Chapter 2:Congressional Power to Limit the Jurisdiction of the Supreme Court and Inferior Federal Courts

§2.1

Introduction and Overview

§2.2

The Power to Make Exceptions to the Jurisdiction of the Supreme Court

§2.2.1

Defining the Scope of the Exceptions Power

The Traditional or Plenary Power View

Mandatory Interpretations

Historical Practice

Precedent

§2.2.2

Structural Limits on Exercises of the Exceptions Power

§2.2.3

External Limits on Exercises of the Exceptions Power

§2.2.4

A Comment on Ambiguities in the Jurisprudence of the Exceptions Clause

§2.3

The Power to Create Article III Courts Inferior to the Supreme Court

§2.3.1

Defining the Power to Constitute Inferior Tribunals

§2.3.2

The Implicit Authority to Regulate Jurisdiction

§2.3.3

Structural Limits on the Power to Create Inferior Tribunals

§2.3.4

External Limits on the Power to Create Inferior Tribunals

§2.4

The Power to Create Non-Article III Courts

§2.4.1

The Argument Against Non-Article III Courts

§2.4.2

The Justification for Non-Article III Courts

§2.4.3

Territorial Courts

§2.4.4

Military Courts

§2.4.5

Adjunct Courts

§2.4.6

The Public Rights Exception: Original Form

§2.4.7

The Public Rights Exception: Modern Form

Chapter 3:Justiciability

§3.1

Introduction and Overview

§3.2

The Elements of a Case or Controversy

§3.2.1

Constitutional Minimum Applied: Advisory Opinions and Collusive Suits

§3.2.2

Constitutional Minimum Applied: Declaratory Relief

§3.2.3

Constitutional Minimum Applied: Supreme Court Review of State Decisions

§3.3

Prudential Considerations: Beyond the Constitutional Minimum

§3.4

The Standing Doctrine

§3.4.1

Injury-in-Fact

§3.4.2

Causation

§3.4.3

Redressability

General Federal and State Taxpayer Standing

§3.4.4

The Prohibition Against Generalized Grievances

Taxpayer Standing and the Establishment Clause

§3.4.5

The Rule Against Third-Party Standing

§3.4.6

The Zone of Interests Test

§3.4.7

Organizational Standing

§3.4.8

Legislative Standing

§3.5

The Timeline of Justiciability: The Ripeness and Mootness Doctrines

§3.6

Ripeness Applied

§3.7

Mootness Applied, and Variations

§3.7.1

Collateral Consequences

§3.7.2

Wrongs Capable of Repetition Yet Evading Review

§3.7.3

Voluntary Cessation

§3.7.4

Class Actions

§3.8

The Political Question Doctrine

Chapter 4:Special Limitations on Judicial Review of State Laws

§4.1

Introduction and Overview

§4.2

The Eleventh Amendment

§4.2.1

The Eleventh Amendment and Sovereign Immunity

§4.2.2

Suits Filed by the United States

§4.2.3

Suits Filed by Another State

§4.2.4

Bankruptcy Proceedings

§4.2.5

Supreme Court Review of State Court Decisions

§4.2.6

The Stripping Doctrine

Ex parte Young and the Fiction of Stripping

Designating the Proper Defendant

Prospective versus Retroactive Relief

Holding Officials Personally Liable in Damages

No Stripping for State Law Claims

Congressional Restriction of the Stripping Doctrine

§4.2.7

Suits Against Governmental Entities

Classifying a Governmental Entity

Stating a Cause of Action: §1983

Suing Federal Officials

§4.2.8

Congressional Abrogation

§4.2.9

State Waiver by Consent to Suit

§4.2.10

The Eleventh Amendment Anomaly

§4.3

The Siler Doctrine

§4.4

The Pullman Doctrine

§4.5

The Younger Doctrine

§4.5.1

The Basic Doctrine

§4.5.2

“Pending” State Proceedings

§4.5.3

The Nature of the State Proceedings

Proceedings of a Judicial Nature

Implicating Important State Interests

§4.5.4

Opportunity to Raise the Federal Claim in the State Proceeding

§4.5.5

Exceptions to the Younger Doctrine

Bad Faith or Harassment

Patently Unconstitutional

Extraordinary Circumstances

§4.5.6

Returning to Federal Court

§4.6

Common Law Immunity

Chapter 5:The Powers of the National Government

§5.1

Introduction and Overview

§5.2

The Necessary and Proper Clause

§5.3

The Power over Interstate Commerce

§5.3.1

A Brief History of Commerce Clause Jurisprudence

§5.3.2

The Modern Law of the Commerce Clause

§5.3.3

The Commerce Clause and Civil Rights

§5.3.4

Closer Judicial Scrutiny: Lopez and Morrison

§5.3.5

Regulating Commercial “Inactivity”

§5.4

The Power to Tax and Spend

§5.4.1

What Constitutes a Tax for Purposes of the Taxing Power?

The “Some Revenue” Test

Is the Law Penal or Prohibitory?

§5.4.2

Specific Limitations on the Power to Tax

The Requirement of Uniformity

Direct Taxes and Proportionality

Prohibition on Taxes or Duties Laid on Exports

§5.4.3

What Constitutes an Expenditure for Purposes of the Spending Power?

Regulatory Spending

Unconstitutional Conditions

Spending Directed Toward the States

Regulatory Authority Over Third Parties

§5.5

The Power over Foreign Affairs

§5.5.1

The Foreign Commerce Power

§5.5.2

The Treaty Power

§5.5.3

Executive Agreements

§5.5.4

The War Powers

§5.6

The Constitutionally Enforceable Principle of Federalism

Chapter 6:The Supremacy Clause

§6.1

Introduction and Overview

§6.2

The Preemption Doctrine

§6.2.1

Types of Preemption

§6.2.2

Conflict Preemption

§6.2.3

Field Preemption

Express Field Preemption

Implied Field Preemption

§6.3

Federal Immunity from State Regulation

§6.4

Federal Immunity from State Taxation

§6.5

State-Imposed Limits on Election to Federal Office

Chapter 7:The Separation of Powers

§7.1

Introduction and Overview

§7.2

“Checks and Balances” and the Commingling of Powers

§7.3

Textual versus Structural or Functional Arguments

§7.3.1

Textual Separation of Powers Arguments

§7.3.2

Structural Separation of Powers Arguments

§7.3.3

Analyzing Separation of Powers Problems

§7.4

The Domestic Arena

§7.4.1

Presidential Exercise of Lawmaking Power

The Nondelegation Doctrine

The Item Veto

§7.4.2

The Legislative Veto

§7.4.3

The Administrative State

§7.4.4

The Appointment of Federal Officers

Classifying Particular Government Positions

Interbranch Appointments

Appointments Made by Congress

Setting Qualifications for Office

§7.4.5

The Removal of Federal Officers

Congressional Participation in the Removal Process

Other Interbranch Removals

Assigning Removal Authority to an Executive Official Other than the President

Limiting the Executive’s Grounds for Removal

Multiple Layers and Limited Grounds

Prohibiting Removal Except by Impeachment

Appointment, Removal, and the Unitary Executive

§7.4.6

Congressional Exercise of Executive Power

§7.4.7

Separation of Powers and the Judiciary

Assigning Nonjudicial Duties to Federal Judges

Interfering with Federal Court Judgments

§7.5

War and Foreign Affairs

§7.5.1

Declaring War and Initiating Hostilities

Theory versus Practice

The War Powers Resolution

The Situation Today

§7.5.2

Treaties and Executive Agreements

The Permissible Subject Matter of Treaties

Abrogating Treaties

Executive Agreements as a Substitute for Treaties

§7.6

Impeachment

§7.7

The Speech or Debate Clause

§7.8

Executive Immunity and Executive Privilege

§7.8.1

Executive Immunity from Suit

No Immunity from Criminal Actions

Qualified Immunity from Civil Damages Actions

Absolute Civil Damages Immunity for the President

§7.8.2

Executive Privilege for Presidential Communications

Chapter 8:The Dormant Commerce Clause

§8.1

Introduction and Overview

§8.2

Early Developments

§8.3

The Modern Test: An Overview

§8.4

Rational Relationship to a Legitimate State Purpose

§8.4.1

Legitimate State Purpose

§8.4.2

Economic Protectionism

§8.4.3

Rational Relationship

§8.5

Extraterritorial Regulatory Effects

§8.6

Discrimination Against Interstate Commerce

§8.6.1

What Constitutes Discrimination?

§8.6.2

Less Discriminatory Alternatives

§8.7

Balancing Burdens and Benefits

§8.7.1

Burdens Must Clearly Outweigh Benefits

§8.7.2

Relevance of Other Statutes

§8.7.3

Cases in Which Balancing May Be Inappropriate

§8.8

Using the Least Burdensome Alternative

§8.8.1

Less Burdensome Alternatives

§8.8.2

Less Burdensome and Less Discriminatory Alternatives

§8.9

State Regulation of Alcohol

§8.10

State Laws That Affect Foreign Commerce

§8.11

Congressional Consent or Authorization

§8.12

The Market Participant Doctrine

§8.12.1

The State as Buyer or Seller

§8.12.2

State Subsidies

§8.12.3

State Tax Credits and Tax Exemptions

§8.13

State Taxes and the Dormant Commerce Clause

§8.13.1

Substantial Nexus to the Taxing State

§8.13.2

Fairly Apportioned

The Subject of a Tax

Methods of Apportionment

§8.13.3

Discrimination Against Interstate Commerce

§8.13.4

Fairly Related to State Services

§8.13.5

Taxation of Foreign Commerce

Chapter 9:The Privileges and Immunities Clause of Article IV

§9.1

Introduction and Overview

§9.2

Fundamental Rights

§9.3

Discrimination Against Citizens of Other States

§9.3.1

The Requirement of Discrimination

Corfield v. Coryell and Natural Law

The Rejection of Corfield

The Fourteenth Amendment Privileges or Immunities Clause

§9.3.2

Who Qualify as “Citizens” of Other States?

§9.3.3

Discrimination Based on Municipal Residence

§9.4

The Substantial Reason Test

§9.4.1

The General Test

§9.4.2

State-Owned Goods or Resources

§9.5

Other Means of Challenging Discrimination Against Out-of-Staters

§9.5.1

Discrimination Against Out-of-State Corporations

§9.5.2

Discrimination Against Citizens of Other States Where No “Fundamental” Right Is Involved

§9.5.3

Discrimination Against Former Citizens of Other States

Table of Cases

Index