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Katkin • • • • • Bill of Rights – 1st 10 Amendments Bill of Attainder – Can’t punish a person without trial. Qui Tam Action – Anyone can bring action against someone who is defrauding the Government. Concurrent Power – Powers that may be regulated by Congress and states concurrently, with States yielding to Congress when powers conflict. Federalism – “Duel Sovereignty” makes us answerable to 2 forms of government concurrently: The Federal Government by their enumerated powers and the necessary and proper clause, and State Governments by all other powers not delegated to the United States.
Articles 1. Congress 2. President and his Executive Powers 3. Constitution creates U.S. Supreme Court; Congress creates all other courts 4. State-to-State Relations—Full faith and Credit 5. Amendment Process – The only way to amend the Constitution is to have 2/3 majority vote in Senate and House to send it to the States…then States must each have 3/4 vote. 6. Supremacy Clause - The Constitution of the Laws of the United states, shall be the supreme law of the land. State courts are required to enforce federal law, even if federal law does not have same outcome and conflicts with state law. 7. It takes 9 of 13 states to ratify a law of the Constitution. State Governments – police power (falling under general jurisdiction) – general power to legislate on any subject, unless there is an obstacle in the state or U.S. Constitution prohibiting them from doing so. U.S. Government – default rule. Opposite from state government, in that Federal Government doesn’t have power to exact a rule unless they can point to an article in the Constitution that allows them to. (enumerated power) I. Federalism: Congress’ Enumerated Powers – 10th Amendment says the powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people. Congress’ powers are all enumerated or “delegated.” Congress must be able to point to a power given to them in the Constitution when exercising a power. A. Supremacy Clause – Article 6: The Constitution of the Laws of the United States shall be the supreme law of the land. State courts
are required to enforce federal law, even if federal law does not have same outcome and conflicts with state law. B. Necessary and Proper Clause – Article I, § 8, Clause 18: Congress has the power to make all laws which shall be necessary and proper for carrying into execution the powers expressly delegated to them by the Constitution. 1. Congress may use any appropriate means to achieve the ends specified in the enumerated powers, so long as the means are not prohibited by the Constitution. Court will not question the need for particular means. 2. Example: Enumerated powers don’t include power to incorporate a U.S. Bank, but Congress may do so as a “necessary and proper means of carrying out its delegated powers to lay and collect taxes, borrow money, regulate interstate commerce, declare war, support the military—all of these are enumerated powers. (McCulloch v. Maryland) 3. Test: The means to be achieved must be found under an Enumerated Power. So, if Congress passes an Act to ultimately exercise its required power under an Enumerated Power, the Act must rationally be related to the Enumerated Power. C. Commerce Clause – Art. I, § 8, Cl. 3: Congress has power to regulate commerce w/ foreign nations, and among the several states, and with the Indian tribes. 1. Interstate vs. Intrastate a) Interstate Commerce – anything that involves money changing hands and business and commercial being conducted between one state and another is interstate commerce. i. Congress may also regulate products that have already been through interstate commerce, to promote efficiency and safety in the future for interstate commerce. ii. Motive irrelevant – Congress may do whatever it believes in its own discretion to further efficiency in interstate commerce (i.e. prohibit sale of lottery tickets, or goods sold in substandard conditions) b) Intrastate Commerce – Congress may regulate intrastate commerce only if it is “economic” in nature against the nation as a whole, largely due to the Necessary and Proper Clause. (i.e. It is necessary and proper for Congress to regulate this certain intrastate activity because, if viewed in the aggregate, it would have an affect on the nation’s economy as a whole, thus affecting interstate commerce.)
Rule → where economic activity substantially affects interstate commerce. e) Rational Basis Test: The courts will determine if congress had a rational basis to reach the conclusion that the means were appropriate. Example: Congress may regulate intrastate working hours and wage for workers who make products that are put into interstate commerce. or persons or things in interstate commerce. o Lopez = Model Exam Answer (p107) 3 . f) “Aggregate Doctrine” – Congress has the power to regulate activities that. even if wholly intrastate. 2. they must be at least economic.c) “Close and Substantial Relationship” – Any act that has a “close and substantial relation” to interstate commerce can be regulated by Congress as well. d) “Effect on Economy” – If an activity is wholly intrastate but would have an effect on the national economy. legislation regulating that activity will be sustained. Congress has this power. then the courts will step in. it may be regulated by Congress through their interstate commerce power. i. If they are not themselves interstate commerce. Example: Segregate restaurant can be overturned by Congress b/c allowing segregation in all restaurants throughout the nation would aggregately have an effect on people traveling the nation. If congress has no rational basis. As long as Congress is saying that an item can’t be shipped through interstate commerce that was made by low-wage employees. c) (3) Economic Activities having Substantial Effect – Congress’ commerce authority includes the power to regulate those (economic) activities having a substantial relation to interstate commerce. Test → whether the regulated activity “substantially affects” interstate commerce. although the threat may come only from intrastate activities. Three Broad Categories Congress may regulate under Commerce Power: a) (1) Channels – Congress may regulate use of channels of interstate commerce b) (2) Instrumentalities – Congress is empowered to regulate and protect the instrumentalities of interstate commerce. would aggregately have a substantial effect on the national economy if they were allowed to continue. i.
taxation power) is irrelevant as long as Congress is acting within the scope of their power.e. Motive Irrelevant – As with all the enumerated powers exercise. OR b) Direct Taxes shall be apportioned throughout the several states (If there is a direct tax. Property Tax – Each property owner must pay tax on the property he owns. then the law/spending will be enforced. Cl. b) Unambiguous – If Congress desires to condition the States’ receipt of federal funds. I. Federal Gas Tax) — anyone else in this same situation throughout the country must be charged w/this same tax. § 8. enabling the States to exercise their choice knowingly cognizant of the consequences of their participation. motivation behind exercising an enumerated power (i. 2. 2 Limits on all Taxes: (Each tax falls under one of these limits) a) Must be uniform throughout the country (i. 1: Congress shall have the power to lay and collect taxes without regard to enumeration. each household in one state must pay the same as each household as another state. (Each person must pay a certain tax no matter what) ii. it “must do so unambiguously.” i.” Substantial deference to the judgment of Congress here. If Congress “says” that spending is for general welfare. c) Income Tax – Congress may structure however they want. 3 Types of Taxes: a) Direct Tax – 2 forms i.)—This tax is dependant on what the population of the state is for this particular issue.D. 4. 3. Capitation Tax– Head tax. 4 . 1.e. b) Excise Tax – Must pay tax on transaction w/someone else. Taxation Powers – Art. ** The amount of taxes collected out of each state must be proportionate to the population of that state. Clear Statement Rule – state must know that the spending is being done for a certain reason. Four Limitations on Spending Power: a) General Welfare – The Constitution mandates that the exercise of the spending power must be in pursuit of “the general welfare.
Legislation – “Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution. etc. then the treaty power can provide the basis for the power. and under Necessary and Proper Clause. but also rebuild the country. Holland. Treaty Power – Art. – Congress may enact Housing and Rent Control Acts after war in order to rebuild the country. whereas Acts of Congress have to be constitutional. then Congress has the power to remedy under their War Powers. raise and support armies. a) Cloyd W. Congress does have an enumerated power to make sure the US upholds treaties we enter. provide and maintain a navy. as a necessary and proper means to execute the powers of the Government. in particular national projects or programs d) Other Constitutional Provisions may provide an independent bar to the conditional grant of federal funds – EX: Coercion by spending power would be unconstitutional. I. c) Example – Congress may pass a treaty. 1. § 8. Congress can not only exercise whatever is necessary and proper to raise an army. make rules for the government and regulation of the land and naval forces. § 8: Congress has the power to declare war. F. while treaties are declared to be so when made under the authority of the United States. War Powers – Art.c) Relatedness – Conditions on Federal Grants must be related to the federal interest. § 2: the power to make treaties is delegated expressly. Then. even though Congress may not have an enumerated power to pass X legislation. South Dakota v. b) HINT – Congress can use their enumerated Treaty Power to create additional powers (not enumerated). 1. Another way to look at it is that. any legislation – not expressly prohibited by the Constitution (see Reid below) – which is necessary and proper to uphold the treaty will be constitutional. II. a) A Treaty only has to be made under the authority of the United States.” Missouri v. may enact a draft if they need to in support of raising an army. 5 . I. Miller Co. there can be no dispute about the validity of the statute under Art. VI: treaties made under the authority of the US are declared the supreme law of the land. The effects of war still lingering. If only constitutional impediment is the lack of an enumerated power. and protect soldiers returning home. If a treaty is valid. 2. After War/Peace Time – If war is "proximate cause" of the problem. Dole E. so long as necessary and proper. and by Art. Drafting – Congress has enumerated power to raise army.
under the Supremacy Clause. A treaty made by the President with the required concurrence of 2/3 of the Senate is. Missouri v. Covert: Congress cannot pass a treaty that is against the Constitution (Congress can’t pass treaty w/another country that says that anyone in foreign country committing crime on U. Can never be used to overcome the bill of rights or any other express limitation. in violation of 6th Amendment Rights.” which takes precedence over contrary state laws. Foreign Affairs – Congress has all power over foreign affairs. Kleppe v. unless it conflicts with the federal law enacted there. 1. Congress can't use the Treaty Power to get around it. 2.” 6 . § 8. otherwise unconstitutional. Copyright Power – Art. cl. Holland: Congress may make a treaty w/ England not to kill any birds migrating during a certain season. military—leading to punishment without a trial. 4. b) Equivalent of state (police power). If conflict. I. Congress’ power to enact rules that are enforced on federal property is constitutional. Congress has 3 types of power: a) Congress has all the power of federal government (normal enumerated powers). § 3.This is a way to pass an Act.All state and local law is effective on federal property within that state. and c) Equivalent of private property owners power i. base will be punished by U. Reid v.S. State and Local law . On Federal Land.) G. 2. and States have none. Cl. New Mexico I.S. IV. Congress has power to make Treaties w/another country. Distinguish: If the reason congress can’t do something is b/c there is an express prohibition in the constitution. 3. 8: Congress shall have Power … to promote the Progress of Science … by securing [to Authors] for limited Times … the exclusive Right to their … Writings. part of the “supreme Law of the Land. H. 2: Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. state law preempted under the Supremacy Clause. then pass an otherwise unconstitutional Act (infringing upon rights reserved to the States via the 10th Amendment here) to uphold that treaty. Property Power – Art. and the Act will be constitutional. and those treaties are supreme law of the land. but for the fact it is enforcing a valid treaty.
e. d) QUICK REFERENCE: State Courts must enforce federal law when laws conflict (Supremacy Clause – Testa). issues (courts of limited jurisdiction) as long as there is a higher court which will review the fed. Wages and Hours – Congress may regulate wages and hours of both private sector and state and local government officials. 50 years after death of author) as it sees fit. 2. and the “limited time” does not say “forever. so long as it is exercising its enumerated copyright power. and if the State fails. 1. United States b) Executive (State Officers) – Congress cannot compel the States to enact or enforce a federal regulatory program. D. then Congress may pass the law themselves. 10th Amendment – “State Autonomy” Limits on Congressional Power a) Legislative (State Legislatures) – Congress cannot order States to pass laws and punish them for not passing laws. where to place its capital city) B. state can have some state courts which will not have jurisdiction to hear fed. however. However. Ashcroft Structural Limitations on Congress’ Enumerated Powers A. Alternatives to Commandeering 7 . But. C. Congress may give a State time to pass a law or take care of a situation.II. c) Judicial (State Courts) – State courts are required to uphold and apply federal law when in conflict with state law b/c of the Supremacy Clause. Congress can’t interfere w/State’s right to regulate its internal affairs (i. the regulation must be enforced by the federal government itself. “Anti-Commandeering Law” – Congress cannot make or coerce a State to enforce a Federal Regulation. 1. “Limited Time” – Congress has authority to enact new “limited times” (i. and cannot circumvent that prohibition by conscripting the State’s officers directly (federalism / dual sovereignty).” Elder v. court issue (courts of general jurisdiction). However. this must be done by Congress itself using Federal officers (Federalism). Taxing – Congress can’t regulate states by taxing them in their capacity as state governments—must subject them to same tax as private sector. Can’t have tax that singles out states. Congress cannot force State Legislatures (NY) or state officials (Printz) to enforce Federal law.e. New York v. State officials and officers may consent and voluntarily enforce federal law.
Reno v. Ex Parte Young Actions are still okay 1.suit against a state official in their official capacity . Private plaintiffs can still sue states for money damages in 14th Amendment causes of action 1. but Congress must make it clear that its intention is to abrogate State’s 11th Amendment b/c of 14th Amendment violation by the state. shall not be construed to extend to any suit commenced or prosecuted against one of the US by Citizens of another State. Private Citizens cannot sue their own State. E. or by Citizens or Subjects of any Foreign States.suit must name them by name and by job title. Black Letter → Private citizens cannot sue states in federal court B. on the ground that the defendant wasn’t really the State.S. When you see state officials acting under color of state law. A. 11th Amendment and State Sovereign Immunity from Suit: Judicial power of the U. but can tell them NOT to do something. or sue Another State in Federal or State court. who is a person acting beyond his constitutional authority. a) Spending Power (condition the payment of relevant federal funds on a state’s agreement to take title to waste) b) Commerce Power (pass federal legislation directly regulating the private producers of low-level radioactive waste to limit their production. You can get both money damages and an injunction as remedies. Federal Government can still sue States for money damages and injunction D. Condon b) No commandeering if no affirmative act is required by states c) Congress cannot order state officials to do something. doing 8 . it just refrains people from doing something. EXCEPTIONS a) Laws of General Applicability . It’s okay to bring money damages suits against a state that violates the 14th Amendment. but an official.A simple prohibition saying "nobody can do X" – which applies to state officials and the general public – and prohibits all people from doing something is not commandeering b/c it does not require someone to do something. Ex Parte Young Action .III. promoting States to act and devise a disposal system) c) Conditional preemption (threaten to pass federal legislation under the Commerce Clause unless states choose to regulate according to federal standards) 3. C. Federal court could issue an injunction against state officials who sought to enforce an unconstitutional state law.
So. no monetary damages 2. H. sue the state park ranger in their state employment. bars a state agency from bringing Ex parte Young action against state officials in federal court). V. A wave of constitutional amendments followed. States are only reserved their “Original Powers” that they had prior to the Constitution—in the case of absence of Constitutional restrictions on State. only to state or agents of the whole state. Suits against MUNICIPAL (local) governments are not precluded under state sovereignty. F. or Enumerated Power by Congress. of KY) barred. 17th Amendment: Election of US Senators: U. Senators elected directly by the people. something against federal law. House was always set up like this. the federal government or a private person can sue the state official as an individual person. Suits with state consent are okay (state tort claims acts. Commonwealth of Virginia v. 9 . C.e.S. Tremendous shift of power from states to federal gov’t. 16th Amendment: Federal Income Tax: Power to lay and collect income tax is for Congress. Congress cannot add to the Constitution. Now Senate is directly accountable to voters (rather than state legislature). None of the other rules apply to local government defendant. Article I. Exception – Ex parte Young actions limited to private Πs (i. Suits against Highland Heights (or any city or county (municipalities)) are not. 1. Reinhard – note: under appeal – will be argued in front of the Supreme Court this semester. B. 2. In Rem Bankruptcy Jurisdiction is okay 16th and 17th Amendments A. Suits against KY (or justice dept. Can only get injunction against individual (not state). Constitutional Limitation on States’ Power A.IV. Commercial contracting) G. neither can States. all of which were in a nationalizing direction. 1. §2 and 3 – Qualifications for Serving House and Senate: State cannot change requirements and qualifications of its citizens or representatives to serve office in the Federal Government. Puts Congress in position where it has so much ability to raise money that it can do a lot more with legal powers. Significance: No actual litigation under these Amendments. find a state park ranger who has violated his federal law while acting under the color of state law.
A. EXCEPTION: unless state acting as a Market Participant E. make water not navigable). Local Test: Areas of commerce that are so local in nature that it would be sound policy to let local courts regulate will be given to the States. HINT – think more about the subject matter and the nature of what is being regulated rather than the purpose of the regulation. However. Application Overview: 1.e. (Black-bird Creek Test) 2. B.VI. in that taxing can be concurrent powers b/c States and Congress may lay and collect taxes w/o one affecting the other’s rule — interstate commerce is a doctrine that States will almost always affect when enacting laws. it is per se invalid. Distinguish → Interstate commerce is different than taxing. Subject Matter/National vs. Note that Congress does have the power to exclude someone. where Congress has left an area of commerce unregulated and State passes regulation that affects interstate commerce. The National Government must be controlled directly by the people w/o interference from the States. Public Health/Safety: If purpose was to improve public health and safety. Several TESTS to see whether Law violates DCC: 1. C. State can enact law. but does not have the power to add additional qualifications (Powell). (Cooley v. D. 4. Regulation of IC is expressly and exclusively granted to Congress. There is a rebuttable presumption of unconstitutionality 10 . Applied When Congress is silent on an issue → i. DORMANT COMMERCE CLAUSE: DCC is a judicially created negative inference restricting state power → implied from the express grant of exclusive power to Congress to regulate commerce under the Commerce Clause. and had incidental affect on interstate commerce. Constitutional Qualifications – Neither States (Term Limits) nor can Congress (Powell) alter Constitutional qualification requirements for serving in Congress. 3. Issue → whether the express grant of power to Congress to regulate commerce precludes States from regulating commerce where Congress is silent. if purpose was to affect/burden interstate commerce (i. Not in text of Constitution – created by SCOTUS.e. Board of Wardens) 3. If Undue Burden on IC (facially neutral) → apply Pike Balancing Test 3. If Facial Discrimination or Economically Protectionist Purpose/Effect → apply Strict Scrutiny Test 2. Facial Discrimination → apply Strict Scrutiny Test – When State passes a law that on its face favors in-state commercial interests over out-of-state. or any other Federal position. State cannot enact law.
e. EMPLOYING — NOT REGULATING or using Sovereign Powers (State cannot regulate dealings of private parties under this doctrine). State has burden to prove BOTH: a) (1) The State regulation achieves some compelling state interest (i. F.e. If the state is a participant in the market. adequate to conserve legitimate local interests available? 4. b) LOOK FOR: BUYING. sovereign capacity). No Facial Discrimination → apply Pike Balancing Test: Where the statute regulates to uphold legitimate local public interest. it can discriminate and unreasonably burden IC all it wants. SELLING. it will be upheld unless the burden on commerce is excessive in relation to the value of upholding the local benefits. Market Participant Exception: When a state is acting as a market participant (i. 2. 2nd is where the action is. law is unconstitutional. Congress’ Power to Validate Discriminatory State Legislation: Congress may validate State laws that would be discriminatory under the Commerce Clause. and not as a regulator (i. a) Applies when: State acts just like a person/business trying to buy or sell or employ in the market. AND b) (2) There are no reasonable. promote health/safety/welfare). Are there reasonable nondiscriminatory alternatives. Does incidental effect on interstate commerce outweigh the benefit the State receives from the law? If so. nondiscriminatory alternatives available adequate to conserve State’s legitimate local interests. 11 . there is a “virtually per se” (or at least very strong) presumption that the facial discrimination is unconstitutional under the Dormant Commerce Clause. c) South-Central Timber v. buyer/seller/employer). and it only has incidental effect on interstate commerce. 1st is easy. and another state’s citizens another way (and another rule applies to other states).e. Wunnicke: Imposing down-stream conditions on a sale is outside the market-participant exception. c) Where a State treats its citizens one way (one rule applies to this state).and we apply a Strict Scrutiny Test. Must be immediate transaction. i. the Commerce Clause limitations (discrimination & unreasonable burden) do not apply. Exceptions to Dormant Commerce Clause 1.
B. No “Market Participant” exception under Privileges and Immunities Clause 5. ***Privileges and Immunities Clause does not extend to all commercial activity. Corporations: Corporate law is incorporated under State law. The right to be treated equally under common law rights would fall under this Clause. Is the privilege/immunity one that is protected under this Clause? (IF YES. Is there a substantial reason to justify the law? Look to see if statute is aimed at fixing the problem that burdens the state (the type of evil that is created by out-of-staters) (IF YES. Prevents one state from discriminating against citizens of another state regarding basic economic rights and activities based on state residency. Privileges and Immunities Clause is a rights provision that Congress may not waive. Corporations enjoy no protection under this clause. No strong presumption of unconstitutionality in discrimination— more of a balancing test. Citizens of other states should be treated (for the most part) the same way as citizens of that state. Distinguish from Dormant Commerce Clause: 1. G. Citizens of every State are citizens of the U. 2. 3.VII. of Revenue of KY v. Always Apply Test!!! 1. 6. but only the exercise of “fundamental rights.S. Serves as a restraint on state efforts to bar out-of-staters from access to local resources. THEN LAW/STATUTE WILL BE ENFORCED.” 4. Purpose: To create uniformity between several states and uphold Full Faith and Credit between several states. A. the market participation exception can apply. Davis: Where commercial activities by governments and their regulatory efforts complement each other in advancing a civic objective different from the discrimination traditionally held to be unlawful. IF NO. P & I CLAUSE WILL OVERRULE STATUTE) 12 . Privileges and Immunities Clause – Article IV. The P&I Clause imposes direct restraint on state action in the interests of interstate harmony [unlike the Dormant Commerce Clause. GO TO 2ND PRONG) 2. §2: The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. and Congress does not have much power to regulate corporations. and should be allowed to move freely throughout the several states. d) Dept.. which imposes implied restraint upon state regulatory powers so as to give way to superior authority (Supremacy Clause) of Congress to regulate interstate commerce] C.
Enjoyment of life and liberty. • 13 . Note: "citizens" does not apply to corporations or aliens (for P&E purposes). and whether the degree of discrimination bears close resemblance to themShow “peculiar source of evil at which statute is aimed” in order for statute or ordinance to be upheld D. 2. Coryell) 1. Protection by the government 2. inquire as to whether these “substantial reasons” exist. look for economic discrimination against citizens or residents. Privileges/Immunities that are protected under P&I Clause. to take. and will satisfy first prong of test: (Corfield v. with the right to acquire and possess property of every kind. think P&E.United Building & Construction Trades Council v. or to reside in any other state. hold and dispose of property. Generally.most of the time a fact pattern dealing w/ economic discrimination is going to be a Commerce Clause issue. The right of a citizen of one state to pass through. to institute and maintain actions of any kind in the courts of the state. and to pursue and obtain happiness and safety. Mayor and Council of Camden: Court applied test where people were working in Camden but not living there. professional pursuits. But. and an exemption from higher taxes or impositions than are paid by the other citizens of the state E. or otherwise. subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. court remands to find out whether the statute’s purpose of lessening unemployment of residents of Camden is substantial enough reason/justification to discriminate. for purposes of trade. P & E is not the answer . thus satisfying the first prong of the test. 3. EXAM TIPS 1. 3. agriculture. to claim the benefit of the writ of habeas corpus. either real or personal. pursuing work was found to be a privilege/immunity protected under the clause. • In each case. if the words citizens or residents in fact pattern. If P & E is going to be the answer.
Fundamental rights Less stringent – closer to balancing test What type of activity does clause effect? Standard of review WHEN DECIDING IF DCC OR P&I. Discriminatory law must be best way to solve a problem. Triggered when discrimination relates to the exercise of rights NO – only constitutional right of citizens of a state – this does not apply to corps No No – it is a constitutional right of the individual to be treated fairly in all states – Congress cannot pass legislation which violates the P/I clause. and there is no applicable federal laws. end balkanized economy to allow free trade within US without protectionist interest state to state to enhance economy Triggered when discrimination relates to business/economic activity. alternatives OR 2. the state is a market participant If the law burdens interstate commerce and the burden outweighs the state’s interest in the action. Privileges and Immunities ISSUE State/local action discriminates against out-of-staters DCC If the discrimination burdens interstate commerce.Dormant Commerce Clause v. State/local action does not discriminate Theory Trigger Applicable Entity (may a corporation be a ∏)? Is there a “market participation” exception? May congress waive the clause? (okay discrimination) Political motive – about making a more perfect union and merging diverse states into one – political harmony between states and reduce political tension.” “ENTITY. FIRST ASK “THEORY. P/I does NOT apply where there is no discrimination.strict scrutiny P/I If the action denies the out of state person important fundamental rights. 1.” AND “TRIGGER.” QUESTIONS ABOVE 14 . 2. the law is invalid unless the state has a substantial justification and there are NO less restrictive means. There non-resident must be a “peculiar source of evil” the state is attempting to regulate. Yes – doesn’t matter if person or corporation claiming right – either can exercise DCC rights. the action is invalid unless: 1. Yes Yes – Congress can overrule and potentially allow for some discrimination Economic Activity More stringent . the law is invalid creates single economic market. it furthers an important non-economic state interest and there are no reasonable non discr.
b/c Congress governs all of bankruptcy law) • Savings Clause: Sometimes. and giving away State’s right to build bridge) C. Congress can.” If you have a contract already written. Federal Preemption of State Law under the Supremacy Clause A. Article I. however. State Bargaining Away Police Power: State can’t bargain away it’s police. Congress’ law and state law are so totally different and opposite. If states really enter into financial obligations. and doesn’t MATERIALLY impair K payments/debts.Congress writes law and says that it is to be exclusive. State can’t make financial commitments and then not follow through. or makes particular remedy for contract. B. A.Even if Congress doesn’t expressly say that it intends to preempt state law. Blaisdell: Court says that if State is responding to emergency situation and vital interests of its people. but only to the extend that it is necessary to relax restraints. Congress will pass law w/language that says this law is not meant to affect or preempt State laws governing the situation. States can. pass law that will be followed by K written AFTER the state law is written. State can’t then pass law that effects remedy or terms. it may relax Contracts Clause restraints. there is strong presumption that they must uphold those financial obligations. TRY TO APPLY ALL 3 OF THESE 1. Home Building & Loan Ass’n v. that Congress’ law will preempt state law b/c they are in conflict 15 . 2-prong Test: 1. or other Sovereign Power by entering into K and bargaining away w/private party (Charles River Bridge Case – State was not bound to contract entered into w/bridge company giving them exclusive right to build bridge. Court says that just b/c states find it convenient to make promises and break them. Distinguish: Congress can pass Bankruptcy laws affecting debt obligations of contracts. Conflict Preemption (state law is literally in conflict w/federal law) . D.VIII.e. Need State to use method that only SLIGHTLY impairs payment of Ks. Need Emergency Situation to provide flexibility of the Clause 2. Express Preemption . and shall preempt any state law. there is no state bankruptcy law. Savings Clause = no preemption at all!!!! 2. legislative. and that state law is given no effect that effects these issues (i. they can’t just do that. 3 Types of Preemption (ways State law is preempted): IN EACH PREEMPTION CASE. §10 Contracts Clause: Prohibits any State (not Congress) from passing “Law impairing the Obligation/Debt of Contracts. IX. however.
state says teachers must wear blue shirt on Fridays—arguably. although it wouldn’t “technically” conflict w/federal law. Congress says teachers must wear blue shirt on Fridays. but can only ENFORCE LAWS that 16 .e. w/state law (i. Field Preemption (state law doesn’t conflict w/federal law. President must get his powers from (1) the Constitution. • Elected office • Enter into treaties w/foreign countries if Congress approves • Appoint lower offices if approved by Congress • Commander-in-chief of the Army (This does not mean that he can order citizens around in the U. • Pardoning Power 2. state law would effect federal law b/c no one wants to wear purple tie and blue shirt) Separation of Powers and Non-delegation: Separation of powers between 3 branches within the federal government.e. 3 Branches of Government: A. Executive: Largest branch. completely hierarchical w/the President at top.Congress may be heavily regulated in an area. only the military. Article II vests power in President w/o qualification. President’s Powers: Constitution vests executive powers in President w/o qualification. just to support the military—he can only order soldiers around) • EXECUTE a law that CONGRESS has passed (Executive Power – President can only enforce and execute laws that Congress has already passed. thus. state cannot regulate any in that area b/c state regulation. Youngstown Sheet Case: President can’t use his commander-in-chief power to exercise authority over citizens. he can’t make up a law and then force people to follow it—can’t enforce a law that doesn’t exist) • RESPONSIBILITY to ensure that laws are obeyed. He also can’t use his executive power to MAKE LAWS.X. 1. or (2) Congress delegating the power (through statute or law). State law says teachers must wear pink shirt on Fridays) 3. Congress says teachers must wear purple tie on Fridays. still effects federal law (i. but enacting state law would frustrate Congress’ law and intent/purpose behind that law) . Branches are highly intermingled by the constitutional federal design.S.
3. but there is a zone of twilight in which he and Congress may have concurrent authority. Where there is no law/statute or guidance that either grants or prohibits President’s power in a certain type of emergency. and not be “messenger boy” for Congress. Black: President can’t act unless he has express Constitutional power. such a power must be subject to two important limitations: (1) presidential power may not be exercised in violation of other constitutional provisions. (2) How did 17 . his authority is at its maximum. Jackson: 3 Ways President may Act in Emergencies • Dissent: President should have power to respond to emergencies.) • 2. and thinking of whether Congress would have passed a law like this or not. (However. Justice Jackson) : • 1. or express authority from Congress • J. Here. Youngstown Sheet Case has 3 different views: • Majority Rule/J. note that Congress can never grant President a power that would be against the express provisions of the Constitution. the analysis shall be based on context. Presidential Action pursuant to congressional authority: “When a President acts pursuant to an express or implied authorization of Congress. These contexts are analyzed by (1) looking at Congress’ other laws that they have passed. for it includes all that he possesses in his own right plus all the Congress can delegate. Any challenger bears the heavy burden of demonstrating that the Federal Government lacks the power to do what its political branches have authorized. regulate the exercise of presidential power in this area.” This category assumes some inherent presidential power exists. Yet. by statute. or in which its distribution is uncertain. (2) presidential inherent power is subject to statute – Congress may. 3 Ways President May ACT IN EMERGENCY/Imminent Necessary Situation (Youngstown Sheet Case.Congress has passed.” (through statutes they have passed in expectation of these emergencies) Presidential action. Presidential action where Congress is silent: “When President acts in absence of either a congressional grant or denial of authority he can only rely upon his own independent powers. is presumptively valid. in these circumstances. it is uncertain whether he can act in the way he tries to act.
(Congress’ power usually trumps POTUS). has foreign relations. U. only majority vote in both House and Senate for statute.S. for example. However. such as being commander-in-chief. b) Dames & Moore v. for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Presidential action contrary to congressional directions: “When the President takes measures incompatible with the expressed or implied will of Congress. Regan: Example of implied acquiescence by Congress. to go meet w/foreign leaders. U. 4. Pink: Congress has no bearing on President’s ability to unilaterally recognize ambassadors and determine with what countries the U. but rather at some 18 . now President wanting to enact foreign treaty usually goes through process and enacts a statute instead—not much difference between the 2 today. Statutes: Takes 2/3 vote of Senate to pass treaty. Belmont: President has executive power over foreign relations. Executive Authority over Foreign and Military Affairs a) Foreign Treaties vs. 6. Rehnquist modified Jackson’s framework by observing “that executive action in any particular instance falls. his power is at its lowest ebb. Usually. when Congress passes law that prohibits President from doing something. he can’t do it—it would be breaking the law. • 3. Adopted Jackson’s concurring opinion in Youngstown. the President’s claim depends on the relative merits of his claim vs.S.” Here.S. not neatly in one of three pigeonholes. shifts power presumably for President to do the act. Usually. v. v. 5.Congress respond to the action that the President took? Did they respond by giving their approval of the action? Did Congress respond by disapproving?—KEY IS TO LOOK AT CONGRESS’ voting on whether they like what President did or not—if Congress does nothing. Congress’ authority to act. if Congress passes law that takes away President’s Constitutional (core Article II powers). then this cannot happen. President is able to enter into agreements unilaterally w/foreign countries to settle international dispute over claims—no Contracts Clause violation b/c President was exercising his right to foreign affairs.
b) Ex Parte Quirin: Being a member of an enemy army subjects that member to Military Court jurisdiction. if it had intended this result. President’s Powers to Detain Persons – Habeas Corpus. it was easy by the use of direct words to have accomplished it. Thus.point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. Texas: Courts will PRESUME that a treaty is “non-self-executing. However. Military Tribunals may be used either (1) if the civil courts are closed b/c of the exigencies of war 19 .S. the Constitution goes no further. in states which have upheld the authority of the government AND where the civil courts are open and their process unobstructed.—this is put forth in Congress’ Articles of War. whom are not unlawful enemy combatants.” Just b/c Congress has not EXPRESSLY given the President the authority to act in a certain way—they may still have IMPLIEDLY granted him authority to act in a certain way (by looking at laws and statutes they have already passed which prove that their close relation to the situation implies Congress’ authorization of the power to the President) c) Medellin v. citizenship as well. that he shall be tried otherwise than by the course of the common law. Military Tribunals may not be applied to citizens.” (unless the treaty explicitly says that it is self-executing) meaning that Treaties are not to be enforceable in Court unless Congress implements legislation (ENACTS A STATUTE) to make law to implement the treaty 7.S. It does not say after a writ of habeas corpus is denied a citizen. Indiana CITIZEN. “Privilege of Writ of Habeas Corpus may be denied by the government in times of great crisis and in the exercise of proper discretion. regardless of whether or not enemy army member has U. cannot be detained and tried in MILITARY COURT when civilian court is open. and non-soldier. Congress has EXPRESSELY said that Military Courts have jurisdiction over enemy aliens who have intent of being hostile against the U. Martial Law and Military Tribunals a) Ex Parte Milligan – Milligan.” Thus.
and if you are captured. sabotage. etc). Detentions of war criminals → unlawful combatants: Likewise subject to capture and detention.OR (2) when dealing w/ unlawful enemy combatants..S. then it is legal to detain people as a prisoner of war. Don’t necessarily get access to civilian courts. These people are not only being detained b/c they are member of enemy army.S. was born in U. but b/c they have violated crimes of war. they are. and they don’t have to be tried for a crime —just held until war is over. Rumsfeld— Hamdi was member of Taliban army. but are generally deemed not to be entitled to POW status. you may be detained for the duration of the war/hostilitiesThus. These people may be subject to military justice—tried in military tribunals. but must hear with fair and open mind. disputes that he is member of Taliban army. 20 . subject to trial and punishment by military tribunals for their unlawful acts. then Hamdi will be taken out of Military Court. but moved to Saudi Arabia when he was 1. targeting civilians instead of military targets. being held as ordinary prisoner of war. captured and brought back to U. fighting in wrong uniform. • It is legal to fight for your own country. If it appears he will receive unfair trial. ii. Court says that Military Court has jurisdiction in this case. in addition. Detentions of prisoners of war → lawful combatants: Subject to capture and detention as prisoners of war by opposing military forces. • Violation of the laws of war (Spies. not a WAR CRIMINAL. those captured on the basis that they are members of the enemy army. c) 2 Different Doctrines that Apply to Detaining people at War Times: i. d) Hamdi v. but not subject to military tribunals.
S. and they should be given every single right that a U. Stevens’ Dissent: treason is a very serious charge. citizens. Rumsfeld: Hamdan is Bin Laden’s driver.” He is charged in Federal District Court. f) Hamdan v. as a citizen—President cannot order him to military court. b) BLACK LETTER LAW: If you have someone detained as military combatant. so this falls under Justice Jackson’s first category. Bush— Guantanamo Bay detainees allowed to file petitions) a) FEDERAL COURT HABEAS CORPUS: Courts will then have jurisdiction to determine whether they were given fair and rightful military proceeding. Padilla: Padilla is gangster from Chicago who made many trips to Afghanistan—was thought to be tied to Taliban. and doing this falls in 3rd category in Youngstown Steel case. etc. which is penalty of death in Federal Court. e) Rumsfeld v. military criminal. . Habeas Corpus: Prisoner’s right to petition to Federal civilian court system when being detained for a crime.Scalia’s Dissent: He is being charged with treason. he gets arrested on plane for build “dirty suitcase bomb. all constitutional rights—because this is a very serious charge. and President is at his maximum authority.). President can’t unilaterally order a prisoner of war BEING CHARGED W/WAR CRIME to Military Court. they are entitled to military review to determine whether or not they are 21 i. charged w/war crime of aiding terrorist attacks. Thomas’ Dissent: Congress has authorized President to detain people in war times.S. citizen is entitled to—fair trial. ii. Courts will intervene just to make sure that the military justice standards and procedures were correctly and fairly held. are not to be detained by the military. iii.S. so he may not want non-military jurisdiction. b/c President is going against Congress’ Act. (Can be suspended during war times when courts are closed. (Courts have jurisdictions to decide Habeas Corpus decisions) (Rasul v. and the right to all Constitutional protections for U. 8. Souter’s Dissent: Non-detention Act passed by Congress in the past makes presumption that citizens of U. Youngstown Steel iv.
rightfully held and what they should be held as—war criminal. Congress’ Powers: Constitution vests all legislative powers “HEREIN GRANTED” (i. appealed to Attorney General pursuant to provision of Immigration Act.S. Bicameralism (Art. Attorney General/INS must report to House of Reps when it grants one of these extensions. Sec. 7. House votes Chadha’s extension to be reversed and unilaterally ordered him deported. President has limited and qualified power to nullify proposed legislation by veto—thus. Sec. soldiers get when U. solders are tried in military court—Fairness and fundamental procedures must be the same as those U. soldiers get in court-marshal.S. One House of Congress cannot unilaterally pass a law that is enforceable Then. lawmaking is to be shared by BOTH Houses and the President ii. then sent to and signed by President for it to become a law. enumerated) to Congress. Attorney General granted Chadha’s petition. 3): Congress must present prevent all legislation to the President before it becomes a law. LAWMAKING 1. if President VETOES. • 4 provisions in the Constitution by which one House of Congress may act alone w/the unreviewable force of law. or prisoner of war. Presentment Clauses (Art. Congressional Control over the actions of the Executive Branch a) INS v. under this Act.e.S. I. c) IMPORTANT: The military justice that these criminal get must be the SAME as U. not subject to the President’s 22 . 1 & 7): Laws must be passed by BOTH House and Senate. asking for one-year extension. Legislative: CONGRESS. this ONE-HOUSE VETO was found unconstitutional b/c it VIOLATED THE 2 REQUIREMENTS FOR PASSING A LAW: (Law = Doing something that CHANGES THE LEGAL RIGHTS OF SOMEONE) i. cl. and whether their military proceeding was fair or not. only TWOTHIRDS of the House + TWO-THIRDS of the Senate (rather than simple majority vote) can override President’s veto. B. Chadha: Chadha overstayed his student VISA & was thus deportable. 2. I.
—law clerks to Federal Judges.Veto: (1) House’s power to initiate impeachments. WPR doesn’t apply if Congress DECLARES WAR (i. Judicial D.2): • Principle Officers of the United States —they head a department of the government: Secretary of defense. based on what he liked from Congress’ proposal.S. but also gives him some opportunity to respond to emergencies. etc. etc. b) Clinton v. WWII— only applies when War is not DECLARED). 2. secretary of treasury. C. but Congress needs to get involved ASAP when emergency arises. (President nominates these officers.: How much control does President have over other employees in the EXECUTIVE BRANCH? 2 Kinds of Executive Officers/Employees of the U. 2. but that power could not escalate over a period of time w/o checking w/Congress.—Congress can provide for how these offices are appointed (could be vested in courts of law.S. heads of departments. and Senate enforces their employment) • Inferior Officers of the U. Gives President LIMITED ability. Nixon tried to VETO because: a) President’s constitutional powers as commander-inchief are being taken away from—and 23 . 3. Sec. (4) Senate’s power to ratify treaties. RULED UNCONSTITUTIONAL. and then enact the law himself. Congressional Control over EXECUTIVE OFFICERS of the U.e. or even the President if they wanted to. cl. and Congress getting involved. (2) Senate’s power to conduct trials on impeachment charges.S. (Art. New York: Line-item Veto Act allowed President to mark through provisions of Congress’ budget that President didn’t like. War Powers Resolution: Congress wanted to illustrate framework as to how the President can go about sending troops into battle. and then make the budget a law. He must either sign the whole or VETO the whole. because President can’t unilaterally rearrange Congress’ Budget Act. The President needs limited ability to respond to emergencies. (3) Senate’s power over Presidential appointments. 1.) • This language in this clause is silent on who can be FIRED from these positions.
4. telling what Congress wants when President has sent troops into war. SECTION 8 of WPR: Appropriation of Funds in itself to support a military mission that the President has ALREADY unilaterally initiated is not to be construed as Congress’ approval of President’s unilateral action of sending troops. a) Default Rule: Also. 3. b) Congress being silent and not voting being construed as Congress’ disapproval of President’s action takes away President’s VETO power. in sending troops in. and bring them back. then President sending troops in unilaterally is not approved by Congress) b) Peaceful Troops: The WPR doesn’t apply to troops being sent overseas in PEACEFUL SITUATIONS. if Congress doesn’t act within the 60 days. even though the WPR says that Congress’ silence = Congress’ disapproval. Congress’ War Powers given by Constitution: • Declare War • Make rules/regulations regulating armed forces • Budget Powers for War SECTION 3 OF WPR: President must consult w/Congress if at all possible before sending troops in emergency times SECTION 4 of WPR: President. must report to Congress w/in 48 hrs of sending troops in. Congress ALWAYS WANTS THEIR SILENCE TO BE CONSTRUED AS THEM DISAPPROVING W/PRESIDENT’S ACTION (i. President’s War Powers under WPR: Respond to EMERGENCY SITUATIONS by sending troops if necessary. 6. any time the past President’s have sent troops into foreign countries 24 . b/c Congress’ silence = disapproval and not allowing act to go through means that they can’t veto Congress’ decision. 5. Congress MUST convene and vote within 60 days on whether or not it authorizes sending the troops—whether it was a good idea so we should leave them there. 8. & 5 of WPR. and must report every 6 months during hostile times to let Congress know what status of the war is. However. similarly. Past Presidents View on WPR: All Presidents have thought that the WPR is unconstitutional.2. President must CHECK W/CONGRESS under SECTIONS 3. or rallying troops to defend an invasion. SECTION 5 of WPR: Responds to Youngstown Steel case. if they don’t meet. In this case.e. or whether it was a bad idea. 4. 7. and then has reported to Congress.
and disregarded the Congress’ silence = Congress’ disapproval clause of the WPR 25 . the President has kept troops there.and Congress has been silent.
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