Constitutional Law Outline Three Levels of Review 1.

The mere rationality Standard The court will uphold the gov’t action as long as two req’s are met. a. Legitimate state objective The gov’t must be pursuing a legitimate governmental objective b. Rational Relation Minimally rational relation 2. The strict scrutiny standard

a. Compelling objective Gov’t must have a compelling reason for pursuing the action b. Necessary means The means chosen by the gov’t must be necessary to achieve that goal. 3. Middle level review standard

a. Important objective b. Substantially related means The Mere rationality standard gets used in the following situations 1. Dormant commerce clause The mere rationality test is the main test to determine whether a state regulation that affects the interstate commerce violates the dormant commerce clause. What is the Dormant Commerce Clause is a legal doctrine that courts in the United States have inferred from the Commerce Clause of the United States Constitution. The Commerce Clause expressly grants Congress the power to enact legislation that affects interstate commerce. The idea behind the Dormant Commerce Clause is that this grant of power implies a negative converse — a restriction prohibiting a state from passing legislation that improperly

burdens or discriminates against interstate commerce. The restriction is selfexecuting and applies even in the absence of a conflicting federal statute.

2. Substantive Due Process So long as no fundamental right is affected, the test for determining whether a governmental act violates substantive due process is again mere rationality. Thus...The vast bulk of economic regulations will be tested by the mere rationality standard and almost certainly upheld 3. Equal Protection Mere rationality is used so long as 1) no suspect or quasi suspect classification is being used. 2) No fundamental right is being impaired. Strict Security: When the court applies strict secuirity a. Substantive due process/fundamental rights Where a governmental action affects fundamental rights, and the plaintiff claims that his substantive due process rights are being violated, the court will use strict scrutiny. Therefore the court will use strict scrutiny on anything to do with marriage, child bearing, and child rearing. b. Equal protection review The court uses strict scrutiny to review a claim that a classification violates the plaintiff’s equal protection rights, if the classification relates either to a suspect classification or a fundamental right . Suspect classifications include race, national origin, and sometimes alienage. Fundamental rights include the right to vote, to be a candidate, to have access to the courts, and to travel interstate. c. Freedom of Expression If the gov’t is impairing free expression in a content based way, then the court will use strict scrutiny and will almost certainly strike down the regulation. If the government is restricting some speech, but not others, based on the content of the messages, then this suppression of expression will only be allowed if necessary to achieve a compelling purpose. d. Freedom of religion/Free exercise clause The court will use strict scrutiny to evaluate any impairment with a person’s free exercise of religion. Even if the govt’ does not intend to impair a free person’s exercise of his religion, if it substantially burdens his exercise of religion the gov’t will have to give him an exemption

Middle Level Review: The court will use middle level review when a. Equal Protection/Semi Suspect. Two traits which are deemed semi-suspect are 1. Gener, and 2. Illegitimacy b. Contracts Clause

c. Free expression/non content based The Supreme Court’s Authority and The Federal Judicial Power McCulloch v. Maryland

Facts of the Case: In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax. Question: The case presented two questions: Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with congressional powers? Conclusion: In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers. Writing for the Court, Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution. Marshall also held that while the states retained the power of taxation, "the constitution and the laws made in pursuance thereof are supreme. . .they control the constitution and laws of the respective states, and cannot be controlled by them."

A. Marbury Principle It is the supreme court not congress, which has the authority and duty to declare a congressional statute unconstitutional if the court thinks it violates the constitution

Facts of the Case: The case began on March 2, 1801, when an obscure Federalist, William Marbury, was designated as a justice of the peace in the District of Columbia. Marbury and several others were appointed to government posts created by Congress in the last days of John Adams's presidency, but these last-minute appointments were never fully finalized. The disgruntled appointees invoked an act of Congress and sued for their jobs in the Supreme Court. Question: Is Marbury entitled to his appointment? Is his lawsuit the correct way to get it? And, is the Supreme Court the place for Marbury to get the relief he requests? Conclusion: Yes; yes; and it depends. The justices held, through Marshall's forceful argument, that on the last issue the Constitution was "the fundamental and paramount law of the nation" and that "an act of the legislature repugnant to the constitution is void." In other words, when the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court's power of judicial review.
The Supreme Court may review State Court decisions but only to the extent that the decision was based on federal law. Congress’s Control of Federal Judicial Power Congress has the general power to decide what types of cases the Supreme Court may hear, so long as it doesn’t expand the Supreme Court’s jurisdiction beyond the Federal Judicial power

Federalism and Federal Power Generally • • The federal government is one of limited enumerated powers. The three federal branches (congress, the executive branch, and the federal courts) can only assert powers specifically granted to them by the U.S constitution.

1. No general police power There is no general federal police power. All power must come from the enumerated powers. Congress is given the power to make all laws which shall be necessary and proper for carrying into execution the specific powers Nessecary and proper clause means that if congress is seeking any objective that is within the specifically enumerated powers, then congress can use any means that is: 1) rationally related to the objective congress is trying to achieve; and 2) is not specifically forbidden by the constitution.

The Prize Cases Facts of the Case: Lincoln proclaimed a blockade of southern ports in April 1861. Congress authorized him to declare a state of insurrection by the Act of July 13, 1861. By the Act of August 6, 1861, Congress retroactively ratified all Lincoln's military action. These cases involved the seizure of vessels bound for Confederate ports prior to July 13, 1861. Question: Did Lincoln act within his presidential powers defined by Article II when he ordered the seizures absent a declaration of war? Conclusion: The President had the power to act. A state of civil war existed de facto after the firing on Fort Sumter (April 12, 1861) and the Supreme Court would take this fact into account. Though neither Congress nor the President can declare war against a state of the Union, when states

waged war against the United States government, the President was "bound to meet it in the shape it presented itself,without waiting for Congress to baptize it with a name."

Ex Parte Merryman Ex parte Merryman, 17 F. Cas. 144 (1861), is a well-known U.S. federal court case which arose out of the American Civil War. Against President Abraham Lincoln's wishes, Chief Justice Roger Taney, sitting as a judge of the United States Circuit Court for the District of Maryland, ruled: "1. That the president [...] cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it. 2. That a military officer has no right to arrest and detain a person not subject to the rules and articles of war [...] except in aid of the judicial authority, and subject to its control."

Ex Parte Milligan Facts of the Case: Lambden P. Milligan was sentenced to death by a military commission in Indiana during the Civil War; he had engaged in acts of disloyalty. Milligan sought release through habeas corpus from a federal court. Question: Does a civil court have jurisdiction over a military tribunal? Conclusion: Davis, speaking for the Court, held that trials of civilians by presidentially created military commissions are unconstitutional. Martial law cannot exist where the civil courts are operating.

Ex parte Quirin, a Supreme Court of the United States case that upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius German saboteurs in the United States. Quirin has been cited as a precedent for the trial by military commission of any unlawful combatant against the United States.

Johnson v. Eisentrager, a major decision of the U.S. Supreme Court, where it decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison. The prisoners had at no time been on American sovereign territory.

San Antonio v. Garcia Facts of the Case: The San Antonio Metropolitan Transit Authority (SAMTA), the main provider of transportation in the San Antonio metropolitan area, claimed it was exempt from the minimum-wage and overtime requirements of the Fair Labor Standards Act. SAMTA argued that it was providing a "traditional" governmental function, which exempted it from federal controls according to the doctrine of federalism established in National League of Cities v. Usery (1976). Joe G. Garcia, an employee of SAMTA, brought suit for overtime pay under Fair Labor Standards Act. Question: Did principles of federalism make the San Antonio Metropolitan Transit Authority immune from the Fair Labor Standards Act? Conclusion: In a 5-to-4 decision, the Court held that the guiding principles of federalism established in National League of Cities v. Usery were unworkable and that SAMTA was subject to Congressional legislation under the Commerce Clause. The Court found that rules based on the subjective determination of "integral" or "traditional" governmental functions provided little or no guidance in determining the boundaries of federal and state power. The Court argued that the structure of the federal system itself, rather than any "discrete limitations" on federal authority, protected state sovereignty. “If the the regulation would be valid if applied to a private party, it is also valid as to the state”

Powers of the Federal Government; the Separation of Powers A particular congressional act comes within congress’s commerce power if both the following are true 1. Substantially affects commerce 2. Reasonable means The 10th Amendment: 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 the people. “If the regulation would be valid if applied to a private party, it is also valid as to the state” Congress may not may not simply force a state to enact a certain statute or to regulate in a certain manner

Summary of the power of the three branches 1. Congress: a. Interstate commerce: Congress has the power to regulate interstate commerce, as well as foreign commerce b. Taxing and spending: Congress has the power to regulate and dispose of federal property c. War and defence: Congress can declare war, and can establish and fund the armed forces. 2. President a. Execution of laws: The president holds the “executive power.” That is, he carries out the laws made by congress. It is his obligation to make sure the laws are faithfully executed b. Commander in Chief: He is commander in chief of the armed courses. So he directs and leads our armed forces (But he cannot declare war-only congress can do this) c. Treaty and Foreign Affairs: The president can make treaties with foreign nations (if 2/3 of the senate approves). He appoints ambassadors. He affective controls foreign policy

d. Appointment of federal officers: The president appoints all federal officers e. The president can issue pardons but only for federal offenses f. The president may veto any law passed by both houses

The Federal Commerce Power The power to regulate commerce.... among the several states Summary of Modern View 1. Channels: Congress can regulate the use of the channels of interstate commerce. That is they can regulate in a way that is reasonably related to highways, waterways, and air traffic. 2. Instrumentalities: Congress can regulate the instrumentalities of interstate commerce, even though the activities being regulated are completely intrastate 3. Articles: Congress can regulate articles moving in interstate commerce 4. Substantially affecting commerce: Congress can regulate those activities having a substantial affect on interstate commerce

National Labor Relations Board v. Jones & Laughlin Steel Corporation

Facts of the Case: With the National Labor Relations Act of 1935, Congress determined that labor-management disputes were directly related to the flow of interstate commerce and, thus, could be regulated by the national government. In this case, the National Labor Relations Board charged the Jones & Laughlin Steel Co. with discriminating against employees who were union members. Question:

Was the Act consistent with the Commerce Clause? Conclusion: Yes. The Court held that the Act was narrowly constructed so as to regulate industrial activities which had the potential to restrict interstate commerce. The justices abandoned their claim that labor relations had only an indirect effect on commerce. Since the ability of employees to engage in collective bargaining (one activity protected by the Act) is "an essential condition of industrial peace," the national government was justified in penalizing corporations engaging in interstate commerce which "refuse to confer and negotiate" with their workers.

Wickard v. Filburn Facts Filburn was a small farmer in Ohio. He was given a wheat acreage allotment of 11.1 acres under a Department of Agriculture directive which authorized the government to set production quotas for wheat. Filburn harvested nearly 12 acres of wheat above his allotment. He claimed that he wanted thewheat for use on his farm, including feed for his poultry and livestock. Fiburn was penalized. He argued that the excess wheat was unrelated to commerce since he grew it for his own use.

Question: Is the amendment subjecting Filburn to acreage restrictions in violation of the Constitution because Congress has no power to regulate activities local in nature? Conclusion: According to Filburn, the act regulated production and consumption, which are local in character. The rule laid down by Justice Jackson is that even if an activity is local and not regarded as commerce, "it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'This is the farrest reaching example of the commerce clause. Cite to this when you need to argue that the commerce clause is applicable.

Gonzales v. Raich Facts of the Case: In 1996 California voters passed the Compassionate Use Act, legalizing marijuana for medical use. California's law conflicted with the federal Controlled Substances Act (CSA), which banned possession of marijuana. After the Drug Enforcement Administration (DEA) seized doctorprescribed marijuana from a patient's home, a group of medical marijuana users sued the DEA and U.S. Attorney General John Ashcroft in federal district court.

The medical marijuana users argued the Controlled Substances Act - which Congress passed using its constitutional power to regulate interstate commerce - exceeded Congress' commerce clause power. The district court ruled against the group. The Ninth Circuit Court of Appeals reversed and ruled the CSA unconstitutional as it applied to intrastate (within a state) medical marijuana use. Relying on two U.S. Supreme Court decisions that narrowed Congress' commerce clause power - U.S. v. Lopez (1995) and U.S. v. Morrison (2000) - the Ninth Circuit ruled using medical marijuana did not "substantially affect" interstate commerce and therefore could not be regulated by Congress. Question: Does the Controlled Substances Act (21 U.S.C. 801) exceed Congress' power under the commerce clause as applied to the intrastate cultivation and possession of marijuana for medical use? Conclusion: No. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the commerce clause gave Congress authority to prohibit the local cultivation and use of marijuana, despite state law to the contrary. Stevens argued that the Court's precedent "firmly established" Congress' commerce clause power to regulate purely local activities that are part of a "class of activities" with a substantial effect on interstate commerce. The majority argued that Congress could ban local marijuana use because it was part of such a "class of activities": the national marijuana market. Local use affected supply and demand in the national marijuana market, making the regulation of intrastate use "essential" to regulating the drug's national market. The majority distinguished the case from Lopez and Morrison. In those cases, statutes regulated non-economic activity and fell entirely outside Congress' commerce power; in this case, the Court was asked to strike down a particular application of a valid statutory scheme.

U.S v. Lopez Facts of the Case: Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high school. He was charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun-Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a firearm at a place that [he] a school zone." Lopez

was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release. Question: Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause? Conclusion: Yes. The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity. Cite to Lopez when you need to argue that the commerce clause is overreaching. Cite to Lopez to argue that allowing the gov’t to use the commerce clause in one situation, will lead to undesirable limitless powers in the future.
The Tenth Amendment as a Limit On Congress’s Power The tenth amendment 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.

Printz v. United States Facts of the Case: The Brady Handgun Violence Prevention Act (Brady Bill) required "local chief law enforcement officers" (CLEOs) to perform background-checks on prospective handgun purchasers, until such time as the Attorney General establishes a federal system for this purpose. County sheriffs Jay Printz and Richard Mack, separately challenged the constitutionality of this interim provision of

the Brady Bill on behalf of CLEOs in Montana and Arizona respectively. In both cases District Courts found the background-checks unconstitutional, but ruled that since this requirement was severable from the rest of the Brady Bill a voluntary background-check system could remain. On appeal from the Ninth Circuit's ruling that the interim background-check provisions were constitutional, the Supreme Court granted certiorari and consolidated the two cases deciding this one along with Mack v. United States. Question: Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs to regulate handgun purchases by performing those duties called for by the Brady Bill's handgun applicant background-checks? Conclusion: No. The Court constructed its opinion on the old principle that state legislatures are not subject to federal direction. The Court explained that while Congress may require the federal government to regulate commerce directly, in this case by performing background-checks on applicants for handgun ownership, the Necessary and Proper Clause does not empower it to compel state CLEOs to fulfill its federal tasks for it - even temporarily. The Court added that the Brady Bill could not require CLEOs to perform the related tasks of disposing of handgun-application forms or notifying certain applicants of the reasons for their refusal in writing, since the Brady Bill reserved such duties only for those CLEO's who voluntarily accepted them.
The Separation of Powers President can’t make laws: The president cannot make the laws, only carry them out Only congress, not the president can declare war. However, the president can declare war to repel a sudden attack.

U.S v. Curtis-Wright Export Corp. Facts of the Case:

Curtiss-Wright was charged with conspiring to sell fifteen machine guns to Bolivia, which was engaged in an armed conflict in the Chaco. This violated a Joint Resolution of Congress and a proclamation issued by President Roosevelt. Question: Did Congress in its Joint Resolution unconstitutionally delegate legislative power to the President? Conclusion: The Court agreed that the President was allowed much room to operate in executing the Joint Resolution; it found no constitutional violation. Making important distinctions between internal and foreign affairs, Justice Sutherland argued because "the President alone has the power to speak or listen as a representative of the nation," Congress may provide the President with a special degree of discretion in external matters which would not be afforded domestically.

Dames & Moore v. Reagan Facts of the Case:

In reaction to the seizure of the U.S. embassy and American nationals in Iran, President Jimmy Carter invoked the International Emergency Economic Powers Act (IEEPA) and froze Iranian assets in the United States. When the hostages were released in 1981, Treasury Secretary Donald Reagan affirmed the agreements made the Carter administration that terminated all legal proceedings against the Iranian government and created an independent Claims Tribunal. Dames & Moore attempted to recover over $3 million owed to it by the Iranian government and claimed the executive orders were beyond the scope of presidential power. Question: Did the president have the authority to transfer Iranian funds and to nullify legal claims against Iran? Conclusion: The Court held that the International Emergency Economic Powers Act constituted a specific congressional authorization for the President to order the transfer of Iranian assets. The Court further held that although the IEEPA itself did not authorize the presidential suspension of legal claims, previous acts of Congress had "implicitly approved" of executive control of claim settlement. The Court emphasized the narrowness of its ruling, limiting the decision to the facts of the case.

Youngstown Sheet and Tube v. Sayer Facts of the Case:

In April of 1952, during the Korean War, President Truman issued an executive order directing Secretary of Commerce Charles Sawyer to seize and operate most of the nation's steel mills. This was done in order to avert the expected effects of a strike by the United Steelworkers of America. Question: Did the President have the constitutional authority to seize and operate the steel mills? Conclusion: In a 6-to-3 decision, the Court held that the President did not have the authority to issue such an order. The Court found that there was no congressional statute that authorized the President to take possession of private property. The Court also held that the President's military power as Commander in Chief of the Armed Forces did not extend to labor disputes. The Court argued that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." The Authorization for Use of Military Force Against Terrorists
authorizing the use of United States Armed Forces against those responsible for the attacks on September 11, 2001. The authorization granted the President the authority to use all "necessary and appropriate force" against those whom he determined "planned, authorized, committed or aided" the September 11th attacks, or who harbored said persons or groups. Due Process Due process (more fully due process of law) is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land. As developed through a large body of case law in the United States, this principle gives individuals a varying ability to enforce their rights against alleged violations by governments and their agents (that is, state actors), but normally not against other private citizens.

Hamdi v. Rumsfield Facts of the Case:

In the fall of 2001, Yaser Hamdi, an American citizen, was arrested by the United States military in Afghanistan. He was accused of fighting for the Taliban against the U.S., declared an "enemy combatant," and transfered to a military prison in Virginia. Frank Dunham, Jr., a defense attorney in Virginia, filed a petition for a writ of certiorari in federal district court there, first on his own and then for Hamdi's father, in an attempt to have Hamdi's detention declared unconstitutional. He argued that the government had violated Hamdi's Fifth Amendment right to Due Process by holding him indefinitely and not giving him access to an attorney or a trial. The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States "enemy combatants" and thus restrict their access to the court system. The district court ruled for Hamdi, telling the government to release him. On appeal, a Fourth Circuit Court of Appeals panel reversed, finding that the separation of powers required federal courts to practice restraint during wartime because "the executive and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not." The panel therefore found that it should defer to the Executive Branch's "enemy combatant" determination. Question: Did the government violate Hamdi's Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who fought against the United States? Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"? Conclusion: Yes and no. In an opinion backed by a four-justice plurality and partly joined by two additional justices, Justice Sandra Day O'Connor wrote that although Congress authorized Hamdi's detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker. The plurality rejected the government's argument that the separation-of-powers prevents the judiciary from hearing Hamdi's challenge. Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality that Hamdi had the right to challenge in court his status as an enemy combatant. Souter and Ginsburg, however, disagreed with the plurality's view that Congress authorized Hamdi's detention. Justice Antonin Scalia issued a dissent joined by Justice John Paul Stevens. Justice Clarence Thomas dissented separately.

Padilla v. Rumsfield Facts of the Case:

Jose Padilla, an American citizen, was arrested in Chicago's O'Hare International Airport after returning from Pakistan in 2002. He was initially detained as a material witness in the government's investigation of the al Qaeda terrorist network, but was later declared an "enemy combatant" by the Department of Defense, meaning that he could be held in prison indefinitely without access to an attorney or to the courts. The FBI claimed that he was returning to the United States to carry out acts of terrorism. Donna Newman, who had represented him while he was being held as a material witness, filed a petition for habeas corpus on his behalf. The U.S. District Court for the Southern District of New York ruled that Newman had standing to file the petition despite the fact that Padilla had been moved to a military brig in South Carolina. However, the court also found that the Department of Defense, under the President's constitutional powers as Commander in Chief and the statutory authorization provided by Congress's Authorization for Use of Military Force, had the power to detain Padilla as an enemy combatant. The district judge rejected Newman's argument that the detention was prohibited by the federal Non-Detention Act, which states that no "citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." On appeal, a divided Second Circuit Court of Appeals panel reversed the district court's "enemy combatant" ruling. The panel found that the Authorization for Use of Military force did not meet the requirement of the Non-Detention Act and that the President could not, therefore, declare American citizens captured outside a combat zone as enemy combatants. Question: Does Congress's "Authorization for use of Military Force" authorize the President to detain a United States citizen based on a determination that he is an enemy combatant, or is that power precluded by the Non-Detention Act? Conclusion: The Court did not reach a decision on the merits in this case. Instead, in 5-to-4 opinion written by Chief Justice William H. Rehnquist, the Court found that the case had been improperly filed. Under federal law, a petition for a writ of habeas corpus can only be filed against the person directly responsible for a prisoner's confinement or, put another way, the person with the power to bring the prisoner to court. In most cases this person is the warden of the petitioner's prison; in this case, it was the commander of the military brig in which Padilla was held. Because Padilla's attorney had listed Secretary of Defense Donald Rumsfeld as the defendent, instead of the brig commander, and because the suit was filed in New York instead of in South Carolina, where the commander lived and worked, the Court found that the case would have to be re-filed in a federal district court in South Carolina.

Hamdam v. Rumsfield Facts of the Case:

Salim Ahmed Hamdan, Osama bin Laden's former chauffeur, was captured by Afghani forces and imprisoned by the U.S. military in Guantanamo Bay. He filed a petition for a writ of habeas corpus in federal district court to challenge his detention. Before the district court ruled on the petition, he received a hearing from a military tribunal, which designated him an enemy combatant. A few months later, the district court granted Hamdan's habeas petition, ruling that he must first be given a hearing to determine whether he was a prisoner of war under the Geneva Convention before he could be tried by a military commission. The Circuit Court of Appeals for the District of Columbia reversed the decision, however, finding that the Geneva Convention could not be enforced in federal court and that the establishment of military tribunals had been authorized by Congress and was therefore not unconstitutional. Question: May the rights protected by the Geneva Convention be enforced in federal court through habeas corpus petitions? Was the military commission established to try Hamdan and others for alleged war crimes in the War on Terror authorized by the Congress or the inherent powers of the President? Conclusion: Yes and no. The Supreme Court, in a 5-to-3 decision authored by Justice John Paul Stevens, held that neither an act of Congress nor the inherent powers of the Executive laid out in the Constitution expressly authorized the sort of military commission at issue in this case. Absent that express authorization, the commission had to comply with the ordinary laws of the United States and the laws of war. The Geneva Convention, as a part of the ordinary laws of war, could therefore be enforced by the Supreme Court, along with the statutory Uniform Code of Military Justice. Hamdan's exclusion from certain parts of his trial deemed classified by the military commission violated both of these, and the trial was therefore illegal. Justices Scalia, Thomas, and Alito dissented. Chief Justice John Roberts, who participated in the case while serving on the DC Circuit Court of Appeals, did not take part in the decision.

Boumediene v. Bush Facts of the Case:

In 2002 Lakhdar Boumediene and five other Algerian natives were seized by Bosnian police when U.S. intelligence officers suspected their involvement in a plot to attack the U.S. embassy there. The U.S. government classified the men as enemy combatants in the war on terror and detained them at the Guantanamo Bay Naval Base, which is located on land that the U.S. leases from Cuba. Boumediene filed a petition for a writ of habeas corpus, alleging violations of the Constitution's Due Process Clause, various statutes and treaties, the common law, and international law. The District Court judge granted the government's motion to have all of the claims dismissed on the ground that Boumediene, as an alien detained at an overseas military base, had no right to a habeas petition. The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal but the Supreme Court reversed in Rasul v. Bush, which held that the habeas statute extends to non-citizen detainees at Guantanamo. In 2006, Congress passed the Military Commissions Act of 2006 (MCA). The Act eliminates federal courts' jurisdiction to hear habeas applications from detainees who have been designated (according to procedures established in the Detainee Treatment Act of 2005) as enemy combatants. When the case was appealed to the D.C. Circuit for the second time, the detainees argued that the MCA did not apply to their petitions, and that if it did, it was unconstitutional under the Suspension Clause. The Suspension Clause reads: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The D.C. Circuit ruled in favor of the government on both points. It cited language in the MCA applying the law to "all cases, without exception" that pertain to aspects of detention. One of the purposes of the MCA, according to the Circuit Court, was to overrule the Supreme Court's opinion in Hamdan v. Rumsfeld, which had allowed petitions like Boumediene's to go forward. The D.C. Circuit held that the Suspension Clause only protects the writ of habeas corpus as it existed in 1789, and that the writ would not have been understood in 1789 to apply to an overseas military base leased from a foreign government. Constitutional rights do not apply to aliens outside of the United States, the court held, and the leased military base in Cuba does not qualify as inside the geographic borders of the U.S. In a rare reversal, the Supreme Court granted certiorari after initially denying review three months earlier.

Question: 1. Should the Military Commissions Act of 2006 be interpreted to strip federal courts of jurisdiction over habeas petitions filed by foreign citizens detained at the U.S. Naval Base at Guantanamo Bay, Cuba? 2. If so, is the Military Commissions Act of 2006 a violation of the Suspension Clause of the Constitution? 3. Are the detainees at Guantanamo Bay entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?

4. Can the detainees challenge the adequacy of judicial review provisions of the MCA before they have sought to invoke that review? Conclusion: A five-justice majority answered yes to each of these questions. The opinion, written by Justice Anthony Kennedy, stated that if the MCA is considered valid its legislative history requires that the detainees' cases be dismissed. However, the Court went on to state that because the procedures laid out in the Detainee Treatment Act are not adequate substitutes for the habeas writ, the MCA operates as an unconstitutional suspension of that writ. The detainees were not barred from seeking habeas or invoking the Suspension Clause merely because they had been designated as enemy combatants or held at Guantanamo Bay. The Court reversed the D.C. Circuit's ruling and found in favor of the detainees. Justice David H. Souter concurred in the judgment. Chief Justice John G. Roberts and Justice Antonin Scalia filed separate dissenting opinions.
The Keith Case The Court held government officials were obligated to obtain a warrant before beginning electronic surveillance even if domestic security issues were involved. The "inherent vagueness of the domestic security concept" and the potential for abusing it to quell political dissent made the Fourth Amendment protections especially important when the government engaged in spying on its own citizens.

ACLU v. NSA American Civil Liberties Union et al., v. National Security Agency / Central et al., is a case decided July 6, 2007, in which the United States Court of Appeals for the Sixth Circuit held that the plaintiffs in the case did not have standing to bring the suit against the NSA, because they could not present evidence that they were the targets of the so-called "Terrorist Surveillance Program" (TSP).

Legislative and Executive Immunity The president has absolute immunity from civil liability for his official acts. No immunity for unofficial acts.

U.S v. Nixon

The Supreme Court does have the final voice in determining constitutional questions; no person, not even the President of the United States, is completely above law; and the president cannot use executive privilege as an excuse to withhold evidence that is 'demonstrably relevant in a criminal trial.' The Dormant Commerce Clause Three part Test A state regulation which affects interstate commerce must satisfy each of the following 3 req’s in order to avoid violating the dormant commerce clause 1. The regulation must pursue a legitimate state end 2. The regulation must be rationally related to the legitimate state end 3. The regulatory burden imposed by the State on interstate commerce must be outweighed by the state’s interest in enforcing its regulation Discrimination Against Out-of-Staters If the state is promoting its residents own economic interests, this will not be a legitimate state objective, so the regulation will virtually automatically violate the commerce clause Granholm v. Heald Facts Michigan wanted to bar out-of-state wine producers from shipping wines directly to Michigan State consumers. Instead, forcing them to go through a 3 tier distribution network, even though it would likely make it economically prohibitive to do so. Issue Does a state’s regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the dormant commerce cause in light of section of the twenty first amendment Rule The court held that the law discriminates against interstate commerce in violation of the commerce clause, and that the discrimination is neither authorized or permitted by the twenty-first amendment The differential treatment between in-state and out-of-state wineries constitutes explicit discrimination against interstate commerce You cannot give a competitive advantage to in-state interests

Gibbons v. Ogden Facts of the Case: A New York state law gave two individuals the exclusive right to operate steamboats on waters within state jurisdiction. Laws like this one were duplicated elsewhere which led to friction as some states would require foreign (out-of-state) boats to pay substantial fees for navigation privileges. In this case a steamboat owner who did business between New York and New Jersey challenged the monopoly that New York had granted, which forced him to obtain a special operating permit from the state to navigate on its waters. Question: Did the State of New York exercise authority in a realm reserved exclusively to Congress, namely, the regulation of interstate commerce? Conclusion: The Court found that New York's licensing requirement for out-of-state operators was inconsistent with a congressional act regulating the coasting trade. The New York law was invalid by virtue of the Supremacy Clause. In his opinion, Chief Justice Marshall developed a clear definition of the word commerce, which included navigation on interstate waterways. He also gave meaning to the phrase "among the several states" in the Commerce Clause. Marshall's was one of the earliest and most influential opinions concerning this important clause. He concluded that regulation of navigation by steamboat operators and others for purposes of conducting interstate commerce was a power reserved to and exercised by the Congress.

The 14th and 15th amendments cannot be used to reach purely private conduct The 13th amendment is the only amendment that can reach purely private conduct.
The Civil Rights Cases

The Civil Rights Cases, 109 U.S. 3 (1883)[1], were a group of five similar cases consolidated into one issue for the United States Supreme Court to review. Congress lacked the constitutional authority under the enforcement provisions of the Fourteenth Amendment to outlaw racial discrimination by private individuals and organizations, rather than state and local governments. More particularly, the Court held that the Civil Rights Act of 1875, which provided that "all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the

conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude" was unconstitutional.

S. Carolina v. Katzenbach

Facts of the Case: The Voting Rights Act of 1965 prevented states from using a "test or device" (such as literacy tests) to deny citizens the right to vote. Federal examiners, under the Attorney General's jurisdiction, were empowered to intervene to investigate election irregularities. Question: Did the Act violate the states' rights to implement and control elections? Conclusion: The Court upheld the law. Noting that the enforcement clause of the Fifteenth Amendment gave Congress "full remedial powers" to prevent racial discrimination in voting, the Act was a "legitimate response" to the "insidious and pervasive evil" which had denied blacks the right to vote since the Fifteenth Amendment's adoption in 1870.

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968),[1] is a United States Supreme Court case which held that Congress could regulate the sale of private property in order to prevent racial discrimination: "42 U.S.C. § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment." The Civil Rights Act of 1866 (passed by Congress over the veto of Andrew Johnson) provided the basis for this decision as embodied by 42 U.S.C. § 1982. Reversing many precedents, the Supreme Court held that the Civil Rights Act of 1866 prohibited both private and state-backed discrimination and that the 13th Amendment authorized Congress to prohibit private acts of discrimination as among "the badges and incidents of slavery." Congress possessed the power to "determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation."

Boerne v. Flores Facts of the Case: The Archbishop of San Antonio sued local zoning authorities for violating his rights under the 1993 Religious Freedom Restoration Act (RFRA), by denying him a permit to expand his church in Boerne, Texas. Boerne's zoning authorities argued that the Archbishop's church was located in a historic preservation district governed by an ordinance forbidding new construction, and that the RFRA was unconstitutional insofar as it sought to override this local preservation ordinance. On appeal from the Fifth Circuit's reversal of a District Court's finding against Archbishop Flores, the Court granted Boerne's request for certiorari. Question: Did Congress exceed its Fourteenth Amendment enforcement powers by enacting the RFRA which, in part, subjected local ordinances to federal regulation? Conclusion: Yes. Under the RFRA, the government is prohibited from "substantially burden[ing]" religion's free exercise unless it must do so to further a compelling government interest, and, even then, it may only impose the least restrictive burden. The Court held that while Congress may enact such legislation as the RFRA, in an attempt to prevent the abuse of religious freedoms, it may not determine the manner in which states enforce the substance of its legislative restrictions. This, the Court added, is precisely what the RFRA does by overly restricting the states' freedom to enforce its spirit in a manner which they deem most appropriate. With respect to this case, specifically, there was no evidence to suggest that Boerne's historic preservation ordinance favored one religion over another, or that it was based on animus or hostility for free religious exercise.
11th Amendment Stuff One state cannot be sued in federal court by citizen’s of a different state.

Seminole Tribe v. Florida

Facts of the Case: The Seminole Tribe brought suit against the State of Florida for violating the good faith negotiations requirement of the Indian Gaming Regulatory Act (IGRA). Under the IGRA, the Tribe may engage in gaming (i.e., casino gambling) activities subject to Florida's good faith regulations. Florida moved to dismiss the Tribe's action, alleging that the lawsuit violated Florida's sovereign immunity. On appeal from the District Court's denial of Florida's motion to dismiss the lawsuit, the Court of Appeals reversed, holding that the Eleventh Amendment shielded Florida from federal suit and that under Ex Parte Young, the Tribe may not enforce its right to good faith negotiations by naming Florida's governor as a party to the suit. Question: Does the Eleventh Amendment provide Florida with immunity from the Tribe lawsuit? Conclusion: Yes. In a 5-to-4 decision, The Court held that Congress did intend to abrogate states' sovereign immunity under the IGRA but that the Indian Commerce Clause (and by implication the Commerce Clause) did not give Congress that power. Under the Eleventh Amendment, all states are regarded as sovereign entities. Such sovereignty inherently implies that states may not be sued by parties without their consent, even if they are given authority to regulate those parties' activities through receipt of federal funds. Finally, Ex Parte Young's ruling does not justify the Tribe's suit against Florida's governor in light of certain IGRA provisions which specifically prohibit such an action.
The doctrine of soverign immunity generally prevents congress from from subjecting the states to private suits in their own courts, even when the right sued on is federal.

Alden v. Maine Facts of the Case: A group of probation officers sued their employer, the State of Maine, in 1992 alleging that the state had violated the overtime provisions of the 1938 Fair Labor Standards Act. Following the Court's decision in Seminole Tribe v. Florida (1996)_which held that States are immune from private suits in federal court and that Congress lacks the authority to abrogate that immunity_the probation officers' suit was dismissed in Federal district court. Alden and the other probation officers then sued Maine again for violating the Fair Labor Standards Act, this time in state court. The state trial court and the state supreme court both held that Maine had sovereign immunity and could not be sued by private parties in their own court. Question: May Congress use its powers under Article I of the Constitution to abrogate a state's sovereign immunity from private suits in its own courts? Conclusion: No. A sharply divided court held in a 5-4 decision that Congress may not use its Article I powers to abrogate the states' sovereign immunity. Both the terms and history of the eleventh amendment suggest that States are immune from suits in their own courts. And more generally, the original understanding of the Constitution's structure and the terms of the tenth amendment confirm that states retained much of their sovereignty despite their agreeing that the national government would be supreme when exercising its enumerated powers.

Tennessee v. Lane Facts of the Case: George Lane and Beverly Jones were disabled and could not access upper floors in Tennessee state courthouses. Lane, Jones, and several others sued Tennessee in federal district court, alleging that by denying them public services based on their disabilities, Tennessee was in violation of Title II of the Americans with Disabilities Act (1990). According to Title II, no person may be denied access to "services, programs, or activities" on the basis of his disability. The act allows alleged victims of discrimination to sue states for damages. Tennessee asked that the case be dismissed, claiming that it was barred by the 11th Amendment's prohibition of suits against states in federal courts (the sovereign immunity doctrine). The state cited Alabama v. Garrett (2001), in which the U.S. Supreme Court ruled that Congress had acted unconstitutionally in granting citizens the right to sue states for disability discrimination (such as the denial of employment) under the 14th Amendment's equal protection clause. In that case the Supreme Court reasoned that Congress did not have enough evidence of disability discrimination by states to justify the waiver of sovereign immunity. The district court rejected the state's argument and denied the motion to dismiss. The Sixth Circuit Court of Appeals panel affirmed. The courts reasoned that because Title II of the ADA dealt with the Due process Clause of the 14th Amendment, not the equal protection clause, the ruling in Garrett did not apply. The court found that while Congress may not have had enough evidence of disability discrimination to waive sovereign immunity for equal protection claims, it did have enough evidence of Due Process violations (such as non-handicap-accessible courthouses) to waive the sovereign immunity doctrine for Due Process claims. Question: Did the Americans with Disabilities Act violate the sovereign immunity doctrine of the 11th Amendment when, based on Congress's 14th Amendment enforcement powers of the Due Process clause, it allowed individuals to sue states for denying them services based on their disabilities? Conclusion: No. In a 5-to-4 opinion written by Justice John Paul Stevens, the Court held that Congress had sufficiently demonstrated the problems faced by disabled persons who sought to exercise fundamental rights protected by the Due Process clause of the 14th Amendment (such as access to a court). The Court also emphasized that the remedies required from the states were not unreasonable - they just had to make reasonable accommodations to allow disabled persons to exercise their fundamental rights. Because Title II was a "reasonable prophylactic measure,

reasonably targeted to a legitimate end," and because Congress had the authority under the 14th Amendment to regulate the actions of the states to accomplish that end, the law was constitutional.
Missouriri v. Holland

Facts of the Case: In December 1916, the United States and Great Britain entered into a treaty to protect a number of migratory birds in the U.S. and Canada. Congress passed the Migratory Bird Treaty Act in 1918 in order to facilitate enforcement of the treaty. When Ray P. Holland, the U.S. Game Warden, threatened to arrest citizens of Missouri for violating the Act, the state of Missouri challenged the treaty. Question: Did the treaty infringe upon rights reserved to the states by the Tenth Amendment? Conclusion: No. In a 7-to-2 decision, the Court held that the national interest in protecting the wildlife could be protected only by national action. The Court noted that the birds the government sought to protect had no permanent habitats within individual states and argued that "[b]ut for the treaty and the statute there soon might be no birds for any powers to deal with." The Court thus upheld the exercise of the treaty power and thus found no violation of the Tenth Amendment.

South Dakota v. Dole

Facts of the Case: In 1984, Congress enacted legislation ordering the Secretary of Transportation to withhold five percent of federal highway funds from states that did not adopt a 21-year-old minimum drinking age. South Dakota, a state that permitted persons 19 years of age to purchase alcohol, challenged the law. Question: Did Congress exceed its spending powers, or violate the Twenty-first Amendment, by passing legislation conditioning the award of federal highway funds on the states' adoption of a uniform minimum drinking age? Conclusion: No. In a 7-to-2 decision, the Court held that Congress, acting indirectly to encourage uniformity in states' drinking ages, was within constitutional bounds. The Court found that the legislation

was in pursuit of "the general welfare," and that the means chosen to do so were reasonable. The Court also held that the Twenty-first Amendment's limitations on spending power were not prohibitions on congressional attempts to achieve federal objectives indirectly. The five percent loss of highway funds was not unduly coercive. Massacheutts v. EPA Facts of the Case: Massachusetts and several other states petitioned the Environmental Protection Agency (EPA), asking EPA to regulate emissions of carbon dioxide and other gases that contribute to global warming from new motor vehicles. Massachusetts argued that EPA was required to regulate these "greenhouse gases" by the Clean Air Act - which states that Congress must regulate "any air pollutant" that can "reasonably be anticipated to endanger public health or welfare." EPA denied the petition, claiming that the Clean Air Act does not authorize the Agency to regulate greenhouse gas emissions. Even if it did, EPA argued, the Agency had discretion to defer a decision until more research could be done on "the causes, extent and significance of climate change and the potential options for addressing it." Massachusetts appealed the denial of the petition to the Court of Appeals for the D.C. Circuit, and a divided panel ruled in favor of EPA. Question: 1) May the EPA decline to issue emission standards for motor vehicles based on policy considerations not enumerated in the Clean Air Act? 2) Does the Clean Air Act give the EPA authority to regulate carbon dioxide and other greenhouse gases? Conclusion: No and yes. By a 5-4 vote the Court reversed the D.C. Circuit and ruled in favor of Massachusetts. The opinion by Justice John Paul Stevens held that Massachusetts, due to its "stake in protecting its quasi-sovereign interests" as a state, had standing to sue the EPA over potential damage caused to its territory by global warming. The Court rejected the EPA's argument that the Clean Air Act was not meant to refer to carbon emissions in the section giving the EPA authority to regulate "air pollution agent[s]". The Act's definition of air pollutant was written with "sweeping," "capacious" language so that it would not become obsolete. Finally, the majority ruled that the EPA was unjustified in delaying its decision on the basis of prudential and policy considerations. The Court held that if the EPA wishes to continue its inaction on carbon regulation, it is required by the Act to base the decision on a consideration of "whether greenhouse gas emissions contribute to climate change." Chief Justice Roberts's dissenting opinion argued that Massachusetts should not have had standing to sue, because the potential injuries from global warming were not concrete or particularized (individual and personal). Justice Scalia's dissent argued that the Clean Air Act was intended to combat conventional loweratmosphere pollutants and not global climate change.

Powell v. Mcormic Facts of the Case: Adam Clayton Powell pecked at his fellow representatives from his unassailable perch in New York's Harlem. Powell had been embroiled in controversy inside and outside Washington. When Powell failed to heed civil proceedings against him in New York, a judge held him in criminal contempt. His problems were only beginning. He won reelection in 1966 but the House of Representatives voted to exclude him. Question: May the House of Representatives exclude a duly elected member if the member has satisfied the standing requirements of age, citizenship and residence as articulated in Article I Section 2 of the U.S. Constitution? Conclusion: No. The Court noted that the proceedings against Powell were intended to exclude and not expel him from the chamber. That is an important distinction to recognize since the House does have the power under Article I, Section 5 to expel members. However, expulsion was not the purpose of the proceedings in this case. After analyzing the Framers' debates on this issue, Chief Justice Warren concluded that since Powell had been lawfully elected by his constituents and since he met the constitutional requirements for membership in the House, that the chamber was powerless to exclude him.

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