This action might not be possible to undo. Are you sure you want to continue?
Law making = “Action with the purpose and effect of altering the legal rights, duties and relations of persons outside the legislative branch.” -Must have (2): -Bicameral Passage -Presentment -Dissent: -not the creation of new law, just limitation, shaping of properly passed law
Privileges and Immunities
-Includes Right to Travel Freely -Right to leave one state and enter another -Right to be welcomed in other states -Right to move to other states, become permanent resident and enjoy same privileges and immunities as residents -can impose reasonable requirements for portable benefits -14th amend is the one at issue here; deals w/ discrimination against classes, not states -Art4: Camden -can’t be prevented from fundamental right (making a living) based on state citizenship
Delegation of Power -Cong. can only delegate power it has to give:
-Law making power as long as with: -“an intelligible principle by which the person or body is authorized to act is directed to conform” -Court has been generous for practical reasons -Dissent: text argument, congress all legis. autho. -Judicial Power – Never -Executive Power – Cannot retain control (removal authority other than impeachment) over officials w/ executive authority.
Originalism – prime source of deciding how a section of the const. applies to a particular issue is how the framers thought about the pertinent section Non-Originalism – context is out of whack Interpretivism – cautious about inferring additional items into the text of the constitution -worries about court loosing credibility Non-Interpretivism – less focused on text, more focused on structure, themes of constitution, precedent, etc -worries about court being unrealistic, out of touch
Dormant Commerce Clause
Is state a market participant? -Buying, selling, dispensing of goods -Subsidies can = market p. -Watch for downstream, non-market seep Rational Basis? – (If no – OUT) Discriminatory – -If facially/practically disc. (strict scrutiny) -Important state interest? (no – OUT) -If so, Least discrimin? (no – OUT) -If yes – OK -If not disc but burdens ISC, balance. -If more burden – OUT -If more benefit - OK STATES ONLY
Can’t interfere w/ existing contracts; Balancing Test: -How substantial is change of the term? -What is the scale of the problem being addressed? -Is modification reasonable (foreseeable) & necessary? (Allied Steel v. Spannaus) Higher Scrutiny: (U.S Trust v. NJ) -Government interference w/ own K’s -Statute aimed at particular company -Aimed at a particular class (slightly less than above)
Congress May: -Directly regulate activities of the state -Preempt w/ own on-point legislation -Entice state to pass law w/ conditional $ (2) -$ must be related to interest in question Electoral process concerns
Political Question: -Decision assigned to other branch -Lack of judicial tools to make decision -Can’t decide without making policy decision Advisory Opinions: -not ripe, no case or controversy Ripeness: -Claimant must have been harmed/will be soon -Criteria for deciding before actual effect: -PL’s hardship w/o pre-enforcement review -Does ct. have all info/tools to decide yet? Mootness: -Claim no longer valid: change in law/facts -Exceptions: - capable of repetition but evading review - Voluntary renunciation, free to reinstate, not necessarily moot
Substantive Due Process
States AND Fed -What type of right? -Is it violated? -Does it pass the appropriate standard? Strict: Fundamental Rights: -Raise children how you want (Society of Sisters) -Intimate relationships (Laurence) -Live with your family (E. Cleveland v. Moore) -Privacy (Roe) -Marry (Zabloki) Raised: Liberties: -Abortion (Casey) Rational Basis: -Other stuff No Economic substantive due process – only conceivable rational basis (Nebbia, Lee Optical)
Procedural Due Process
Taking of individual government benefit (property or liberty) (2) -Must be a property interest? -Must have expectation of continuation -Can be express or Implied -Must have sufficient process to determine if person deserves to have property denied(3): -How important is prop/liberty interest? -What risk of error w/o proposed procedure -What is burden on gov. if procedure added **Stigma + Harm Dissent: -Procedure and benefit are part of same package; gov decides procedure w/o review
-Internal Limitations: -Lopez (3): Channels, Instrumentalities, Those thing substantially impacting ISC -Cumulative effect of economic activity on ISC -External Limitations: -Regulate interstate commerce to achieve a legitimate goal -Limitations: consider if area traditional handled by the state
Elements (3): -Injury – has been or will be immediately injured by -Causation – injury must be result of gov act in quest. -Redressability – Ct. must be able to relieve harm w/ judgment Third Party (4) –NAME THE RIGHT -Injured party unlikely to assert right econ/soc. disinc. -Litigant must be essential party for enjoyment of right -Litig. must show injury by deprivation of 3rd p.’s right -3rd p. must have an injury re: the right in question Association Standing (3): -Members othcerwise have standing -Interest protected is germane to association’s purpose -Claim/remedy doesn’t req. individual members’ partcp.
-Express – fed. statute says it’s exclusive in field (rare) -Implied – -Conflict Preemption: Mutually exclusive law OR state law interferes w/ fed objective Field Preemption
Executive Privilege: presumed of secrecy w/ balancing If privilege invoked, in camera viewing balancing: -Interest in Confidentiality -National Security (+); -General Privacy (-) -Need for Info -Criminal(+); Civil(-); Only Source(+); PL(-); DF(+)
Grant From Congress: -Youngstown Majority: Expressly avoided giving -Frankfurter: A&B expressly okay, C off limits than D and E may be okay. -Jackson: Three zones Hiring and Firing – -President has sole firing power over principle officers -Congress may limit presidential firing power on exec. officers to the extent that the president doesn’t need to be able to fire them on the spot to carry our exec. -Congress may vest firing power in a primary officer (limited by the same as above) -Congress can NEVER hold onto firing power of exec officials.
-Countermajoritarian Concerns -Deference to States vs. High Scrutiny -Making Categories/Drawing lines -Practicality -Separation of Powers -Morals -Traditions -Interpretivism and Originalism -Discrimination