I. II.

Constitutional Law I – Outline – Freedman – Fall 2010 The Historical Context The Problem of Judicial Review a. Marbury v. Madison (1803) i. Rule: The Supreme Court of the United States has the authority to review laws and legislative acts to determine whether they comply with the United States Constitution. ii. Exceptions Clause allows Congress to remove cases entirely from the Court’s appellate jurisdiction, but it does not permit cases to be moved from appellate to original jurisdiction. b. Martin v. Hunter’s Lessee (1816) i. Rule: The Supreme Court has appellate jurisdiction over state court decisions involving federal law. ii. Reasoning: The Court reasoned that appellate review of state court decisions guaranteed uniformity of laws, avoided state jealousies and biased interests, and entitled a defendant with the power of removal, which assured defendants equality in asserting their constitutional rights. c. McCulloch v. Maryland (1819) i. Rule: The Constitution specifically delegates to Congress the power to tax and spend for the general welfare, and to make such other laws as it deems necessary and proper to carry out this enumerated power. Additionally, federal laws are supreme and states may not make laws that interfere with the federal government's exercise of its constitutional powers. ii. Representation Reinforcement – A sufficient security against erroneous and oppressive taxation. iii. Necessary and Proper Clause d. Calder v. Bull (1798) i. Rule: Ex post facto clause applies to criminal, not civil cases


Limitations on Judicial Review a. External Limits i. Legal 1. Constitutional Amendment 2. Statute a. Substantive 1

Appointment 3. On-the-Ground 1. Injury in fact b. 3. Irreducible Minima a. an actual case or controversy must be present. Allen v. Agitation 2. but it gives Congress the express power to make exceptions to that appellate jurisdiction. Advisory Opinions ii. Rule: The Constitution gives the Supreme Court appellate jurisdiction. Internal Limits (Case and Controversy) i. EPA (2007) a. Redressability i. Wright (1984) a. Federalism 2. which is characterized by a truly adversarial relationship. Reality iv. Political 1. Impeachment iii.Constitutional Law I – Outline – Freedman – Fall 2010 b. Massachusetts v. Ex parte McCardle (1869) 1. Causation c. Rule: To have standing to bring a lawsuit. Rule: For standing to be appropriate. Standing 1. Practical Limits ii. b. The Court must always determine first if it is has jurisdiction to review a case. Legal Limits ii. Would a favorable ruling eliminate the harm to the litigant? 2 . Jurisdiction-stripping i. and the chain of causation linking that injury to the actions of a defendant must not be attenuated. 2. plaintiffs must sufficiently allege that they have personally suffered a distinct injury.

Constitutional Law I – Outline – Freedman – Fall 2010 4. Baker v. Ogden (1824) 1. Zone of interests (of Tenth Amendment) c. Bars claims before they have developed v. 45 (Madison) ii. A real live controversy must exist at all stages of review (not merely when the complaint is filed 2. Ripeness 1. Bars claims after they have been resolved IV. Must assert own rights (not that of a third party) i. The Federalist No. Rule: If a state and Congress both pass conflicting laws regulating interstate commerce. Carr (1962) a. Gibbons v. Prudential Principles (not based on Article III and subject to Congressional override) a. Similar to “injury in fact” b. Political Questions 1. Rule: A challenge to malapportionment of state legislatures brought under the Equal Protection Clause is not a political question and is thus justiciable. The Commerce Power i. Federal court will not hear a case unless the plaintiff has been harmed or there is an immediate threat of harm 2. The Bases of Congressional Legislative Authority a. Those inherently incapable of resolution and enforcement by the judicial process 3. the federal law governs pursuant to Congress's constitutional grant of power to regulate interstate commerce. The Federalist No. Those issues committed by the Constitution to another branch of government 2. 3 . 46 (Madison) iii. Mootness 1. No generalized grievances iii. iv.

Darby (below) 1. vi. the court concluded that the real object and purpose of the law was to regulate manufacturing vii. Carter v. Inconsistent state regulation is displaced to the extent that Congress might have imposed one. to the efficiency of interstate service. Carter Coal Co. Therefore. East & West Texas Railway v. Congress’s non-imposition of a regulation is a choice. ALA Schechter Poultry Corp. 2. Hammer v. Ames (1903) (The Lottery Case) 1. Champion v. Wallace (1922) 1. The "stream of interstate commerce" had stopped in this case— Schechter's slaughterhouses bought chickens almost exclusively from intrastate wholesalers and sold completely exclusively to intrastate buyers. The Commerce Clause does not grant Congress the power to regulate the transportation in interstate commerce of goods that have been produced using child labor. Darby (below) 4 . 3. This is the origin of the Dormant Clause. v. Rule: The trafficking of lottery tickets across state lines constitutes interstate commerce that may be prohibited entirely by Congress under the Commerce Clause of the Constitution. (1936) – Limited by United States v. Rule: Congress may regulate operations in all matters having a close and substantial relation to interstate traffic. All activity affecting two or more states iv. Stafford v.Constitutional Law I – Outline – Freedman – Fall 2010 2. 3. United States (1935) 1. Dagenhart (1918) (The Child Labor Case) – Overruled by United States v. ix. v. Even though the statute literally regulated interstate commerce itself. United States (1914) (The Shreveport Rate Cases) 1. Houston. Rule: Congress may regulate the beef industry because it was part of the interstate commerce of beef from ranchers to dinner tables viii. Rule: Congress may not use its Commerce Clause power to regulate child labor in the states as this is a purely local matter. Congress cannot regulate pursuant to the commerce clause. and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms.

Rule: Congress can regulate trivial local. Rule: Congress may regulate the labor standards involved in the manufacture of goods for interstate commerce and may exclude from interstate commerce any goods produced under substandard labor conditions. The Supreme Court cannot consider the motives and purpose of Congress in exercising its power under the Commerce Clause. Dagenhart (The Child Labor Case) and limited Carter v. Holding: The Court held that mining was a local industry. xi. The Court held that the regulation of labor on a local level was beyond the purview of the Commerce Clause. 2. Carter Coal Co. Expanded federal power. 3. intrastate activities that have an aggregate effect on interstate commerce via the commerce power.Constitutional Law I – Outline – Freedman – Fall 2010 1. Wickard v. 2. xiii. NLRB v. Manufacture is not of itself interstate commerce. Congress can control a farmer’s production of wheat for home consumption because the cumulative effect of many instances of such production could be felt on the supply and demand of the interstate commodity market xii. United States (1964) 5 . 2. Darby (1941). Overruled Hammer v. and that the result that Congress undertook to achieve was beyond the power of Congress because it could not be realized by any exercise of specific power granted by the Constitution. 4. Wages and hours worked was a permissible exercise of the commerce power under the Necessary and Proper Clause. Filburn (1942) 1. even if the effect is indirect. The court further ruled that the Act applied to respondent's employees who were engaged exclusively in production because intrastate activities that were closely connected to interstate commerce were subject to regulation by Congress. the shipment of manufactured goods interstate is such commerce. United States v. Jones & Laughlin Steel Corp. (1937) 1. x. Rule: Congress may regulate labor relations under its Commerce Clause power because labor relations have such a close and substantial relationship to interstate commerce that their control is essential to protect that commerce from burdens and obstructions.The Modern Law of the Commerce Clause 1. Heart of Atlanta Motel v.

xiv.S. pass a law that prohibits the possession of a gun near a school. through repetition elsewhere. Rule: Congress may enact regulations that prevent racially discriminatory policies in hotel accommodations because of the negative effects of those policies on interstate commerce. The Act was a valid exercise of Congress' powers under the Commerce Clause. was an appropriate means for Congress to use to attain its legitimate end of regulating interstate commerce. and obstructed interstate commerce. While extortionate credit transactions were purely intrastate. 2. the instrumentalities of interstate commerce. Rule: Congress may not. Lopez (1995) 1. restricted the ability of Negroes to travel interstate. and that there existed a link between local "loan sharks" and interstate crime. the channels of interstate commerce. xvi. and c. 2. United States (1971) 1. United States v. The possession of a gun in a local school zone is in no sense an economic activity that might. Rule: Congress may regulate the discriminatory policies of restaurants through Title II of the Civil Rights Act if those policies have a substantial effect on interstate commerce. have a substantial effect on interstate commerce 3. which affected interstate commerce. Reasoning: By refusing to serve Negroes. Katzenbach v. Reasoning: 75% of the Heart of Atlanta Motel's clientele came from out-ofstate.Constitutional Law I – Outline – Freedman – Fall 2010 1. and that it was strategically located near Interstates 75 and 85 as well as two major U. Organized crime is a national problem. they directly affected interstate and foreign commerce. or persons or things in interstate commerce. pursuant to its Commerce Clause powers. b. activities that substantially affect or substantially relate to interstate commerce 6 . xv. Perez v. the restaurant spent less money. Three broad categories of activity that Congress could regulate under the Commerce Clause a. 2. 2. as the regulation of the class designated as those who in engage in extortionate credit transactions in intrastate activities. Highway. McClung (1964) 1.

duties. 2. imposts. Taxing. Rule: Under §5 of the Fourteenth Amendment. The VAWA attempts to provide a remedy against private individuals accused of genderbased violence and not state officials. Spending Power a. Spending. Gonzales v. b. lay and collect taxes. Congress may only regulate the discriminatory conduct of state officials. Three-part test: 7 . provide for the common defense and general welfare of the United States b. could rationally be seen as having a substantial economic effect on interstate commerce. Intent ii. Reasoning: Production of marijuana meant for home consumption had a substantial effect on supply and demand in the national market. xviii. Factors to consider: i. Whether regulatory effect is due to structure of statute. and if that structure is plausibly revenue-related iv. and excises. Degree of regulatory detail in the statute (weak challenge) iii. Morrison (2000) – Violence Against Women Act (VAMA) 1. and Treaty 1. Congress shall have the power to i. Permitted tax v. forbidden regulation b. to pay the debts and iii. 2. Taxing Power – Congress has the power to lay and collect taxes but they must be uniform throughout the United States a. Raich (2005) 1. Drexel Furniture Co. Amount of revenue raised (weak challenge) c. (1922) 2. ii. Bailey v. United States v.Constitutional Law I – Outline – Freedman – Fall 2010 xvii. War. not private actors. Rule: Congress may regulate the use and production of homegrown marijuana as this activity. Other Powers i. taken in the aggregate.

Steward Machine Co. Butler (1936) i. The condition must be unambiguous. The condition must promote "the general welfare. Congress's conditional spending is subject to four restrictions: 1. Congress's power to tax and spend is a separate power not confined by Congress's other enumerated powers." 2. Is the payment for general welfare? (always assumed to be so) ii. United States v. Is the challenged condition an “inducement” or “coercion” iii. Rule: Congress has the power to give effect to a treaty authorized under the Executive’s treaty power (Article 8 . Treaty Power a. Rule: Congress may not use its taxing and spending powers to obtain an unconstitutional result. War powers of Congress are narrower than its others b. d." and 4. ii. South Dakota v. The condition should relate "to the federal interest in particular national projects or programs. Other constitutional provisions may provide an independent bar to the conditional grant of federal funds. Missouri v.Constitutional Law I – Outline – Freedman – Fall 2010 i. Holding: The Court found that the tax was uniform throughout the states and did not coerce the states in contravention of the Tenth Amendment. Holland (2000) – Migratory birds i. Davis (1937) i. e. Important as a separation of powers issue between the executive and legislature 4. Is the challenged condition reasonably incidental to the general welfare purpose for which the money is being spent in the first place? c. 3. War Power a. Dole (1987) – National Minimum Drinking Age Act i. 3. v. such as invading the reserved rights of the states under the Tenth Amendment.

State sovereignty is maintained iii. National League of Cities v. The Tenth Amendment Mirror a. Usery (1976) – Overruled by Garcia i.” ii. Gregory v. Treaty provisions were not subject to questioning by the states under the process of judicial review. Interest being protected is one that requires “national action in concert with that of another power” iii. ii. Rule: Congress's application of the Fair Labor Standards Act to the employment actions of a state municipal transit authority is a constitutional exercise of its Commerce Clause power. Direct coercion 6. even if that legislation standing alone would be an unconstitutional interference with States’ rights under the Tenth Amendment. The Eleventh Amendment Distortion 9 . 5. The FLSA did not grant authority to Congress to regulate the wages. Nothing in the Tenth Amendment prevents congress from subjecting the states to any of its granted powers as long as it’s intent is clearly expressed d. Congress can directly regulate states as part of a broader federal regulatory scheme that also regulates similar private conduct. United States (1992) – Radioactive Waste i.Constitutional Law I – Outline – Freedman – Fall 2010 II Section 2) through legislation. San Antonio Metropolitan Transit Authority (1985) i. New York v. Enticement c. ii. b. overtime pay. Rule: Congress may not commandeer states to enact or administer a federal regulatory program. The Commerce Clause did not empower Congress to enforce the minimum wage and overtime provisions of the Fair Labor Standards Act against states in areas of “traditional governmental functions. Garcia v. and hours of state government employees. Congress cannot use the states as an administrative arm for implementing federal regulatory policy. ii. Ashcroft (1991) i.

14th – Due process of law a. 15th – Prohibition of voting discrimination 4. Congress is likely to achieve the same result (money damages) by using the Spending Clause.Constitutional Law I – Outline – Freedman – Fall 2010 a. Section 5 – Congress has the power to provide cause of action allowing those individuals whose rights to equal protection or due process are violated to bring a lawsuit. Exception: Money Damages 1. Granted federal courts the affirmative power to hear disputes between private citizens and States. that aspect would only be upheld if the statute were found to be a proper exercise of Congress’s power under Section 5 3.e. Chisholm v. If the statute had a provision authorizing private individuals to sue states for money damages for violations. If a statute can be found valid under Section 5 or another enumerated powers of Congress (i. Florida (1996) i. 11th Amendment also barred suits by citizens against their own state c. 13th – Prohibition against slavery 2. Issue: Is the statute in question is a valid exercise of the power specifically granted to Congress by Section 5 ii. Congress must be acting to enforce amendment b. rather than to assert their 14th Amendment rights as a defense i. ii. Louisiana (1890) i. commerce clause). Private parties may sue state officials for: 1. b. Hans v. Injunctions against unconstitutional conduct 2. statute would be sustained. Money damages iii. Congress can not infringe on other constitutional rights 10 . Enforcement of Civil War Amendments 1. Georgia (1793) – Overruled by the 11th Amendment i. iii. The United States may sue state officials for money damages d. State sovereign immunity could not be displaced by an exercise of the powers granted to Congress in 1789 ii. Three Key Limitations: a. Seminole Tribe of Florida v.

Northwest Austin Municipal Utility District Number One v. Appropriateness/Rational Test – See McCollouch v. ii. it is constitutional b. Classical View 11 . i. City of Boerne v. Maryland ii. Ratchet Theory 7. Rule: Section 5 of the Fourteenth Amendment provides Congress only with remedial powers. The Dormant Commerce Clause i. Congruent and Proportional Test: There must be a similarity likeness and a balanced parallel between the injury to be prevented or remedied and the means adopted. Congress may only enforce legislation that utilizes means proportional to achieving that legislative purpose (congruence and proportionality test). Legislation must be adapted to serve the purpose of the amendment 5. Limits on the Retained Powers of the States a. i. Board of Trustees v." 9. When upholding a constitutional right. Flores (1997) – at odds with Katzenbach a. so long as their actions towards such individuals had a rational basis. there must be a pattern of discrimination by the States which violates the Fourteenth Amendment. Effects v. (same as Katzenbach dissent) iii. If the discrimination has a rational basis. Congress has the power to enforce laws to prevent the violation of a constitutional right.Constitutional Law I – Outline – Freedman – Fall 2010 c. but does not have the power to define the substance of that constitutional right. 1. Discrimination against people with disabilities is analyzed using "rational basis" scrutiny. The court held that the RFRA was unconstitutional because it allowed considerable Congressional intrusion into the states' general authority to regulate for the health and welfare of their citizens. Objective 8. Rule: Congress may pass legislation to enforce the Equal Protection Clause of the Fourteenth Amendment even when the legislation conflicts with state law. Garrett (2001) – Americans with Disabilities Act a. The court concluded that states were not required by the 14th Amendment to make special accommodations for the disabled. Holder (2009) V. "in order to authorize private individuals to recover money damages against the States. Morgan (1966) – English literacy test for voting a. i. Congress may not expand existing constitutional rights or create new ones 6. Katzenbach v. and the remedy imposed by Congress must be congruent and proportional to the targeted violation.

v.incidentally burdens interstate commerce 1. C&A Carbone. Rule: A town statute that discriminates. states may not regulate 2. Maine statute prohibited the importation of love baitfish. City of Philadelphia v. Group 2: Congress has explicitly decided to adopt the laws of several states as the national rule of regulation v. Clarkstown (1994) . overriding any contrary state regulation iv. Inc. Protectionism ii. Political Theory 2. Modern View 1. New Jersey's refusal to let waste into its landfills simply because the waste originated from outside New Jersey violates the Commerce Clause. State has heavy burden of showing that the discrimination is legitimate for non-protectionist reasons 5. Formalism iii. It imposed on out-of-state commercial interests the full burden of conserving the state's remaining landfill space 3. New Jersey had legitimate environmental and economic purposes for passing the law but they acted improperly when they sought to remedy those problems by targeting solely out-ofstate waste producers with its regulations.Constitutional Law I – Outline – Freedman – Fall 2010 1. Maine v. against interstate commerce for the purpose of favoring local business or investment is per se 12 . Congress decided that it should be unregulated. Rule: A state may not discriminate against other states' articles of commerce on the basis of origin. Group 1: If a federal statute is within an enumerated power. Facial Discrimination occurs when a statute regulating transactions between private parties uses some geographical terminology whose effect is to confer some advantage on at least one in-state enterprise and to impose some burden on at least one out-of-state enterprise. Mixed Theory (Political + Economic) 4. Prima facie discriminatory. Congress decided that it should be dealt by states (because it is sound policy or Congress does not have the power to regulate) vi. Economic Theory 3. [2 element test] viii. either on its face or in practical effect. 4. it could mean… 1. New Jersey (1978) – Discrimination Cases 1. Court upheld statute b. vii. then under the Supremacy Clause it must be enforced. Group 3: Congress has been silent. 2. Taylor (1986) a. Statute is okay if state can show legitimate local purpose (which cannot also be served as well by an available nondiscriminatory means).

2. Inc. Healy (1994) 1. Rule: A facially neutral statute still violates the Commerce Clause if it discriminates against interstate commerce in practice. 4. Dairy companies are not required to invest significant money to comply with Minnesota law. 2. Washington State Apple Advertising Commission (1977) – Facially Neutral Statute that burdens out-of-state businesses 1. but is rather the profit that could be made from processing the waste at the town ix. and the unavailability of non-discriminatory alternatives to preserve local interests at stake xi. Rule: A facially neutral statute may be held valid even if. The Maryland statute does not discriminate against interstate commerce as opposed to instate commerce because all of the producers that owned retail stations in the state were foreign corporations xiii. xii. The combined system constitutes the type of economic protectionism the Commerce Clause was designed to prevent. West Lynn Creamery. Rule: A state law that has the practical effect of discriminating against interstate commerce will not be struck down unless the burden it places on interstate commerce is clearly excessive in relation to the putative local benefits it confers. in part political (non-discriminatory) 3. The state must justify a statute in terms of local benefits flowing from the statute. The interstate commerce at issue is not the waste itself. (1981) – Facially neutral statute that imposes burden on both out-of-state and in-state businesses 1. Exxon Corp. Test (must flunk both conditions): 1. The state is requiring out-of-state growers to spend money to comply with the new labeling regulations. In part economic (local benefits). in practical effect. 2. The statute unconstitutionally burdens interstate commerce because the statute is discriminatory in its practical effect and would ultimately reduce the quality of apples. Minnesota v. 2. Clover Leaf Creamery Co. Rule: A regulation violates the Commerce Clause if the combination of a tax and subsidy discriminates against interstate commerce. even if each component would be constitutional if separated. v. v. x.Constitutional Law I – Outline – Freedman – Fall 2010 invalid unless the state can meet the strict scrutiny standard and show that it has no other means to advance a legitimate local interest. Hunt v. A subsidy funded entirely by taxes on the sale of milk produced in other states is unconstitutional 3. 2. Governor of Maryland (1978) 1. it has a disparate impact on some interstate business. Total interstate flow has been substantially affected 13 .

The regulations would actually increase. as a public entity pursuing public interests. The tax exemption for in-state municipal bond interest favored a traditional government function without any differential treatment favoring local entities over substantially similar out-of-state interests. Equal Protection . Privileges and Immunities (Article 4) 1. Davis (2008) a. Ward (1985) a. Kassel v. 4. xv. Rule: A state law that substantially burdens interstate commerce without furthering a legitimate and not illusory state safety interest violates the Commerce Clause. United Building & Construction Trades Council v. the burden on interstate commerce clearly outweighs the legitimate local benefits xiv. In light of available alternatives. Rule: A state may not discriminate against out-of-state interests if those interests are sufficiently fundamental to the promotion of interstate harmony so as to fall within the purview of the Privileges and Immunities Clause. 3. 2. v. xvii. xvi. Camden (1984) a. Kentucky was not prohibited from favoring its own bonds in the competitive market. The Privileges & Immunities Clause is an actual Constitutional text to protect people’s rights. unless the state has a substantial reason for treating out-of-state citizens differently. Metropolitan Life Insurance Co. safety hazards on Iowa highways because the shorter trailer length would allow less freight to be transported per truck. (1981) 1. Is it a privilege or immunity? 2. Does the Ghost Walk? – Department of Revenue of Kentucky v. The Dormant Commerce Clause is a judicially-created doctrine to prevent economic protectionism. rather than decrease. There was no forbidden discrimination since the state. (requiring 1% tax on in-state insurance companies and 3-4% on out-of-state companies) 14 . Is it being discriminatorily withheld? 3. Consolidated Freightways Corp.Protect people from unconstitutional discrimination 1. and the discriminatory means it imposes are closely related to accomplishing that reason. The equal protection clause allows discrimination if it is a rational means to accomplish a legitimate state purpose. thus increasing the amount of trucks on the road and worsening highway conditions. A Ghost: The Market Participation Exception – States may discriminate when they act as participants in the market (but not when they act as regulators) 1. was not required to treat itself as being substantially similar to other bond issuers in the market. Iowa regulation substantially burdens Consolidated Freightways' interstate commerce while resulting in little or no benefit to Iowa's safety interests.Constitutional Law I – Outline – Freedman – Fall 2010 2. b.

states may impose increased limitations on the freedom to contract if those limitations help address the emergency. Trustees of Dartmouth College v. the King and the trustees. 2. and the legislation was temporary in operation.Congress may preempt state regulation 1. New Jersey (1977) a. If the State’s purpose is found to be legitimate. Spannaus (1978) a. Conflict Preemption – Compliance with both federal and state regulations is a physical impossibility b. Charles River Bridge Co. Prohibits states from enacting any law that retroactively impairs contract rights. Pre-Emption . Fletcher v. Rule: The impairment of a contract between a state and private bondholders may only be upheld if it is both reasonable and necessary to serve an important public purpose. the state law stands as long as the burden it imposes is found to be rationally related to that purpose. The Contracts Clause i. xviii. A state cannot refuse to meet its legitimate financial obligations simply because it would prefer to spend money to promote the public good rather than the private welfare of its creditors. Allied Structural Steel Co.Constitutional Law I – Outline – Freedman – Fall 2010 b. Rule: In times of economic emergency or other exigent circumstances. United States Trust Co. not applicable to federal government ii. Peck 1. with which the legislature could not interfere. b. iii. Field Preemption – Federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it 3. Home Building & Loan Assn. iv. v. v. v. Constitution prohibited Georgia from voiding contracts for the transfer of land. The College's corporate charter qualified as a contract between private parties. Express Preemption – Provision specifically referring to preemption and indicating which state laws the national statute supplants 2. v. The conditions upon which the period of redemption was extended were not unreasonable. 15 . Rule: A state may not pass legislation that retroactively and significantly affects the contractual obligation of an employer to provide a pension plan for its employees. Woodward – Public contract 1. Warren Bridge Co. 3.S. v. 4. The Contracts Clause of the U. even though they were secured through illegal bribery. Blaisdell (1934) – Great Depression 1.

“Substantially advances” standard prescirbes an inquiry in the nature of due process (not a takings test). a regulation that fails the “substantially advances” test might violate due process 16 . Factors Originating in Common Law 1. ii. The Court specified that a “close nexus” must be shown between the regulatory condition imposed and the development impacts of concern. Irving (1987) – “the right to pass on property has ben part of the AngloAmerican legal system since feudal times” c. Government inaction is itself a form of regulation 3. (1986) – Upheld a statute requiring an employer withdrawing from a multiemployer pension plan to pay its proportionate share of the plan’s unfunded vested benefits 2. Bowen v. Does the interest resemble one known to common law? a. Is the government conduct action or inaction? a. Hodel v. and that the regulatory action must “substantially advance legitimate state interests” b. Connolly v. Issue: Is it property? 1. is more valuable to the public. ii. Loretto v. Gillard (1987) iii. Rule: When forced to make a choice between saving one of two types of property. a state does not violate the Due Process Clause by deciding upon the destruction of one class of property in order to save another which. Is the government action a restraint or a mandate? a. "Just compensation" be paid if private property is taken for public use by the federal government. Miller v. in the legislature's judgment. FCC v. Schoene (1928) i. benefit the public welfare or public interest. Pension Benefit Guaranty Corp. c. The Takings Clause i. Florida Power Corp. That the Massachusetts state legislature's decision to grant a charter to the proprietors of Warren Bridge after granting a similar charter to the Charles River Bridge Company did not constitute a violation of the Contract Clause. Teleprompter Manhattan CATV Corp (1982) – New York law providing that a landlord must permit a cable television company to install cables into their property was held to be unconstitutional d. California Coastal Commission (1987) i. (1987) (distinguished Loretto) – Court upheld a federal statute authorizing the FCC to regulate the rates utility companies charge cable operators for the use of utility poles 2.Constitutional Law I – Outline – Freedman – Fall 2010 1. Nollan v. Federal courts have held that the Fourteenth Amendment extended the effects of that provision to the states.

ix. x. v. United States (1979) – Pond could not be used for navigation in interstate commerce. the extent to which the regulation has interfered with the owner's reasonable investment-backed expectations.000 per acre but because of a zoning ordinance for residential purposes. and the character of the government action involved in the regulation. unless the economic activity prevented by the regulation is not part of the owner's initial title or property rights when acquiring the property. Penn Central Transportation Co. Kelo v. Pennsylvania Coal Co. 17 . courts should consider the economic impact of the regulation on the owner.Constitutional Law I – Outline – Freedman – Fall 2010 iv. New York City (1978) 1. Rule: A state may use the eminent domain process to take property that is heavily concentrated in the hands of a few private landowners and redistribute it among the general population of private individuals. Rule: A state regulation that completely deprives private property of all its economic value constitutes a taking under the Fifth and Fourteenth Amendments that requires the payment of just compensation to the property owner. b. Kaiser Aetna v. United States v. Rule: In determining whether a state regulation constitutes a taking under the Fifth and Fourteenth Amendments.500 per acre. Extent of Reduction in Value 1. the value of the land was $2. Mahon (1922) 1. v. Hawaii Housing Authority v. Who Benefits? 1. actual physical invasion v. Andrus v Allard (1979) – Statute banned the sale of bald eagle parts taken before the effective date of the statute 2. vi. Midkiff (1984) 1. body of water was private. Euclid v. vii. Nexus 1. “Mere” Expectation 1. Rule: A state's use of eminent domain to condemn property from private individuals and redistribute it to other private individuals constitutes a "public use" under the Fifth Amendment if it is rationally related to a conceivable public purpose. South Carolina Coastal Council (1992) a. See Nollan above viii. right to exclude. frequency and altitude of flights a. “Investment-backed” Expectation v. Rule: A state regulatory act constitutes a taking requiring the payment of just compensation under the Fifth and Fourteenth Amendments if a serious diminution in the value of the property results from the alleged taking. Lucas v. City of New London (2001) i. Ambler Realty Co. (1926) – Market value of land was $10. Causby (1946) – Frequent flights above a landowner’s property constituted a taking.

18 . Palazzolo v. Rhode Island (2001) 1.Constitutional Law I – Outline – Freedman – Fall 2010 xi. 2. Rule: A property owner obtaining property after a regulation on the property is passed may still challenge that regulation as a taking requiring payment of just compensation under the Fifth and Fourteenth Amendments. The Takings Clause exists because some exercises of a state's regulatory power are so unreasonable and onerous as to compel the payment of just compensation.

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