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Constitutional Law Outline Medina Fall 2009 Introduction to the Supreme Court and Constitutional Law: The U.S. Constitution and The Role of the Judiciary – constitutional interpretation POWERS OF THE BRANCHES OF GOVERNMENT AND HOW THEY INTERACT I BACKGROUND A. Our Constitution is influenced by the works of John Locke, who asserted a theory of government followed by the Revolutionary leaders called the social contract. This theory held that autonomous people get together to form a government to protect themselves and their liberties against other individuals. Thus, individuals give up some sovereignty for the protection, but do not give up certain inalienable rights. 1. A written constitution is a way to limit the powers of the government and to protect individual liberties. B. The enumerated powers listed in the constitution establish the government’s only powers. C. The Constitution differs from statutes or codes 1. It is a broad, general structure. 2. Cannot be repealed, and there is a very difficult amendment process. D. Many themes flow through constitutional law: 1. We have a limited government, evidenced through: a. A written document b. Enumerating powers afforded to the government. 2. Antimajoritarianism. The framers feared the majority. These wealthy planters feared the masses taking over government. Examples: a. Two senators are elected from each state; thus, it is the state that is represented, not the people. b. Electoral college can override the popular vote in an election. c. The judiciary is appointed, not elected. d. The Bill of Rights is the most precise protection of individual rights against the majority. 3. Theories of Interpretation. It is difficult to interpret a document that was written 200 years ago and intended for an agrarian society that no longer exists. There are two approaches: a. Original meaning of the language. b. How it should be applied today. 4. Checks and Balances. For the greatest liberty, this structure allocating powers ensured that no one branch could become a tyrant. The three branches of government must check each other. a. Article I: Congress, Article II: Executive, Article III: Judiciary. 1) Placement within the constitution is significant as to how it 1
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should be interpreted. b. In order for the government to act, two branches of government must be involved. 1) Ex: To pass a law, President must approve bill of Congress 2) Ex: To enforce laws, the Executive and Judicial branch are involved. c. Checks and Balances lead to conflicts between the branches and between the state and local government. History of the Constitution 1. First government operated under the Articles of Confederation. Under the Articles, we had thirteen independent colonies, not a nation. 2. We needed a way to bring the states together and form a strong national government. Constitutional convention was formed. a. The goal of the Convention was to amend the Articles and give the national government power over commerce. b. Decided they needed to start over. 3. Because the Convention was held in secret, it is difficult to determine intent in many cases.
CONSTITUTIONAL INTERPRETATION: JUDICIAL REVIEW A. Complicated for three reasons: 1. Absence of language – many areas of government action not addressed. Must look to the rest of the language to determine why it is not there. 2. Vagueness of language – resulted from the many compromises at the Convention. a. Ex: what does “commerce” or “cruel and unusual punishment” mean? 3. Political Policies – always interpret with the social and political ramifications in mind. B. General concepts of interpretation: 1. Originalism – what is critical is the intent of the framers. a. Must go back to the period in which it was drafted to determine the meaning then. b. If it is not expressly addressed, then it is up to the states or Congress to deal with. c. Only way to change is through the amendment process. 2. Non-originalism – should interpret the Constitution in light of contemporary circumstances. a. Cannot limit the Constitution to what existed 200 years ago b. Leaving unaddressed rights to the legislature is wrong because fundamental rights should not be left to the whim of the majority. c. Can evolve through interpretation. 3. Where should final interpretation occur? Theories: a. No authoritative interpretation. Followed by Jefferson and Jackson. Each branch has authority and any conflicts will be resolved through the political process. 2
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1) b. c. Article III 1.
Oppose judicial review. Feel that checks and balances are enough. Each branch has authority in its own area. Judiciary is authoritative. This idea prevails today.
Establishes Supreme Court and gives Congress the power to establish lower courts. a. Gives appellate jurisdiction to the Supreme Court in all cases in law and equity: 1) Arising under the Constitution, 2) Arising under the laws of the U.S.; 3) Arising under treaties made by the U.S. 4) All cases under maritime jurisdiction 5) Where U.S. is a party; 6) Controversies between two or more states; 7) Controversies between citizens of different states; and 8) Controversies between citizens of different and foreign states. b. Supreme Court has original jurisdiction over the following cases: 1) affecting ambassadors and other public ministers, 2) where a state is a party. 2. States that Supreme Court judges will serve life terms during good behavior and that their pay cannot be decreased. Federalist papers No. 78 (Hamilton) a. Framers were probably trying to keep judges in office and avoid political pressure and fear of losing position. b. Protects ability to make impartial decisions. 3. Defines treason, the only crime mentioned in the Constitution. This is so officials cannot use the crime to prosecute certain groups. 4. Establishes trial by jury 5. Does not, however, expressly grant to the courts the power to declare acts of Congress unconstitutional. 6. The Constitution: a. binds members of Congress; b. the executive branch; c. state governments; and d. the Supreme Court justices by imposing on them the responsibility of obeying constitutional requirements even if the litigated case deals with the question. 7. The Constitution replaced the Articles of Confederation. It gave Congress the power to wage and declare war, the power to regulate coins, to create the U.S. Post Office, to deal with the Indians and appoint officers of federal service. The Articles were adopted shortly after the Revolution to ensure unification of the states regarding common foreign and domestic problems 3
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with the understanding that each state would remain sovereign. 9. The Articles lacked the power: a. to tax, b. to regulate commerce; and c. two out of the three branches were missing; d. there was no executive authority; e. there was no general national judicial authority, except maritime; and f. no Bill of Rights. The Constitution changed the framework set up by the Articles of Confederation: a. it created the executive branch; b. it granted to Congress the power to tax and regulate commerce; and c. created the Federal judiciary including the Supreme Court and if Congress chose, the lower Federal Courts
Marbury v. Madison (1801)-The Supreme Court has the power to declare laws unconstitutional; “The Judicial power of the U.S. is extended to all cases arising under the Constitution”. Facts: President Adams was a lame duck when a Republican Congress was replacing a Democrat Congress. Two acts of Congress created new judgeships. Adams had the Secretary of State, Marshall, sign the new judges’ commissions, but the commissions were not delivered before Jefferson took office. Judge Marbury sued on writ of mandamus to force the President to deliver the commission. Marshall, wrongly, did not recuse himself from this case, despite his involvement. Did Marbury deserve the commission? If so, and that right has been violated, does Marbury have a legal remedy? Is that legal remedy a writ of mandamus? Yes, he had a right to it. When the President signs the commission and the Sec. Of State affixes the seal of the U.S. the appointee has a vested interest in the commission. The law must afford a remedy for the violation of a vested legal right. Did the Supreme Court have the jurisdiction to enforce the writ of mandamus?
according to the Supremacy Clause in Art. III and the powers of the court. It is the duty of the Judiciary because of the Judicial Oath taken. it cannot be the supreme law if Congress can change it. He reasoned as follows: 1. and we must respect it. Marshall declared the rule that the Judiciary has the power to declare an act of Congress unconstitutional. it would have undermined the power of the judiciary and ended in a constitutional crisis with each branch fighting for power. Further. the Constitution specifically lists where the Supreme Court has original jurisdiction. 5 Rationale: . and because if the President had refused to deliver Marbury’s judgeship. The Supreme Court can invalidate laws in conflict with the Constitution. 3.Downloaded From OutlineDepot. It is a permanent written document. Especially since there is language that specifically addressed the issue. Thus. which does not grant original jurisdiction to the Supreme Court over cases involving executive officers.VI. Marshall did this because he feared impeachment. 4. this statute conflicts with Art. they would have stated so in the Constitution. If two laws conflict the Court must decide the case conformably with the Constitution. III of the Constitution. the Constitution is the supreme law. and Marshall believed that the Act went against the Constitution. A more narrow reading of this case is that the courts have this power when it comes to their own authority. 7. This case dealt with Art. However. Judiciary must look at laws “arising under the Constitution. the Act gave the Judiciary power beyond what the Constitution did. If the founders intended to give the Legislative branch the discretion to add power to the judicial branch. Why would founders include this if the Congress could change it? 2. Even though a mandamus is proper in this case and the Supreme Court has the power to issue writs of mandamus to any person holding office. The Judiciary Act of 1789 established that the Supreme Court had the authority to hear these writs. 5.” 6.com Holding: No.
S. treaty. III is exclusive and Congress can’t add to it. and By certiorari (at the Court’s discretion). VI. Courts are the final arbiters of the Constitution. 2. Sec. therefore Congress has no power to issue a mandamus because a statute giving it power is unconstitutional. Thus to be consistent with Art. so Congress can’t add 10. 11. III because it has clauses which give the Court original jurisdiction in certain cases and appellate power in certain cases.Downloaded From OutlineDepot. Cert will be granted for final judgments or decrees rendered by the highest court of a state for issues involving the validity of a U. Regulation of Appellate Jurisdiction: Congress has created two methods of invoking Supreme Court jurisdiction: Through appeal where jurisdiction is mandatory. Congress can only issue mandamus as an exercise of its appellate jurisdiction. Marshall claims that (1) Court is given the power to issue a writ. actions or omissions by another agency or branch of government NOTES: 6 . 9. or a state statute that could be repugnant to federal law. implied from Art. the act is unconstitutional because it is inconsistent with Art. Judicial review. III. Rule: The Court did not have jurisdiction therefor Marbury does not get his commission. The list in Art.the power of a higher court to review the decisions of a lower court.the power of a court to hear an action upon its commencement Appellate jurisdiction. to review acts of Congress and if found to conflict to declare them void. Generally a party must petition for cert. WRIT OF MANDAMUS DENIED.authority of the courts to review decisions. Original jurisdiction.com 8. The statute is unconstitutional. The Supreme Court has the power.
One of the most important dilemmas in American constitutional law arises from the tension between the basic principle that the Constitution reposes sovereign authority in the people. USSC has the power to review state court decisions. so Martin had no claim to the property. Hunter claimed that VA had taken the land before enactment of the treaties. You can have a democracy ruled by the people without domination of the majority over the rights of everyone else. Does the Constitution permit the Supreme Court to have appellate jurisdiction over constitutional cases pending in state courts? Can the court overturn state court decisions? Yes. Hunter’s Lessee (1816)-The Supreme Court has the power to review decisions of state court Facts: Martin claimed title to land in VA on inheritance from a British citizen. Is the Constitution an obstacle to democracy? The courts have the final say over the political process. F. Protections against the majority are needed when it comes to dealing with the natural rights recognized by Locke. who elect their representatives and perhaps competing principle that the Constitution itself defeats democratic efforts by the public to proceed in one or another direction. Standard of Judicial Review 1. US and England had entered treaties protecting the rights of British citizens who owned land. Conflict between judicial review and majoritarianism. 2. VA court of appeals ruled in favor of Hunter and for the state’s authority to take the land. that cannot be taken away from a party. Court expands the power of judicial review to the states.A court order issued commanding a public or private entity or an official thereof. to perform a duty required by law. Judicial review is a means by which the courts may invalidate decisions of Congress and the President. although it is not specifically provided for in Art. G. USSC reversed.Downloaded From OutlineDepot. Martin v. The 7 Rule: Issue: Holding: .com Writ of Mandamus. Vested right-a right that is unconditional.III. subject only to the process of constitutional amendment.
the Court held that it had the power to review Acts of Congress for constitutionality. If they created none.III to create lower federal courts. In Martin. Article IV demonstrates that the framers of the Constitution expected that some cases subject to Fed. Judgment reversed. Need one interpretation. Just as in Madison. not the court that givrd jurisdiction”. It is the case not the court that gives jurisdiction. or lack of sufficient sympathy for federal rights. The Supreme Court’s authority over state court decisions is limited to those decisions that involve federal questions. USSC would have no appellate jurisdiction spoken of in this article.Downloaded From OutlineDepot. The Court in Martin found appellate jurisdiction to be a constitutionally permissible method for ensuring uniformity. Also. The Supreme Court may not review state court decisions that involve only state issues or those that rest upon “independent and adequate state grounds”. As stated by Justice Story “ It is the case then. Questions to ponder? What would be the evil in having disparate interpretations of the federal constitution? ♦ The risk of centralization outweighed the risk of harmony ♦ Other devices were available in order to minimize the latter risk and to bring about uniformity 8 . Rationale: Article III gives the Court appellate jurisdiction in all cases arising under the constitution. State judges will be less likely to react sympathetically to federal claims and are susceptible to political influence. the Court confirms its power to review the constitutionality of state courts decisions. does extend to cases pending in state courts. Supreme Court review may become necessary because of state hostility to. State judges are insufficiently independent of the forces against which constitutional guarantees are supposed to run. Idea of uniformity --doesn’t want different decisions on constitutional issues. require national uniformity and by having only one final arbitrator can this be achieved. but principally according to the Federal laws. state interests could prejudice decisions. Congress has the power under Art.S.S. Article III speaks in terms of cases. Court jurisdiction would also be subject to state court jurisdiction because it binds judges in every state to decide cases not only according to the state’s laws and constitution. Further. Thus. The laws of the U.com appellate power of the U. the framers wanted them to have appellate jurisdiction over this.
AK state officials claimed that they weren’t bound by lower federal court desegregation order. 2. State challenges such as the one in Cooper are generally viewed as not involving any serious issue of constitutional law. Can’t reduce salary (though Congress can refuse to raise salary!) Federalists believed that the judiciary had neither the purse nor the sword to become corrupt. need no further restraints. Framers did not want USSC to be a political tool a. Think of Dred Scott decision upholding slavery. I.com H. 2. Rights and precedent c. b. which illustrates the judge’s influence by publicity and criticism. d. Political accountability of judges 1. We expect fairness and impartiality. Legislature and executive may only protect the rights of the majority. 3. Appointed by Executive to further their political agenda. 6. Aaron (1958) 1. Cooper v.Section 5 of the 14th Amendment 9 . e. May want political pressure in these situations. Board of Education. USSC went out of its way to state that “federal judiciary is supreme in the exposition of the law of the Constitution. Even though the Supreme Court’s right to review the constitutionality of state Supreme Court decisions had been firmly established since Martin. Reasons against: a. 5. Reasons for political accountability: a.Downloaded From OutlineDepot. Only way the popular assent gets into judiciary. Desegregation: Challenge came in response to Brown v. Limits on judiciary have worked. Judicial review played into politics in Marbury. Congressional Power to Enforce and Expand Constitutional Rights . c. numerous state challenges to that right have arisen. brings to mind the question of independent judiciary. b. When Judge Baer changed his decision after considerable political pressure. 4. Reason for separation of powers/checks and balances.” and that the USSC interpretation of the constitution is binding on state legislatures and executive judicial officers. Lifetime appointments b.
the free exercise of religion. or designed to prevent unconstitutional behavior. Flores. and filed suit under RFRA when permit was denied. i. The Court rejected the use of strict scrutiny and applied a different test 10 Rule: Issue: Holding: . City of Boerne v.e. preventive legislation because RFRA is so out of proportion to a supposed remedial object that it cannot be understood as responsive to. the power to enforce. Due Process. Congress’ power under §5 of the 14th Amendment but it does not give Congress the power to determine what constitutes a constitutional violation. Boerne added new and very different language. “Congress lacks power to define the right. which is “remedial”. NO. Congress has no right to determine what constitutes a constitutional violation. Did Congress have the authority to pass the RFRA.RFRA is unconstitutional because Congress does not have the power to determine what constitutes a constitutional violation. only to remedy the right”.com A. Facts: Flores was seeking a building permit to build a church. Defendant contends that RFRA protects one of the 14th Amendment liberties. Congress has remedial powers not substantial. REVERSED. §5 gives Congress the power to enforce the provisions of the 14th Amendment. “Congruence and proportionality between the injury that Congress is trying to prevent and the means chosen to remedy the violation of the 14th Amendment.Downloaded From OutlineDepot. RFRA was enacted to prohibit gov’t from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability. Smith – Indians and religious use of peyote. RFRA cannot be considered remedial. Only the judiciary can determine what is unconstitutional.a clause in the 1st Amendment that prohibits the government from interfering with an individual’s religious practices. NOTES: Congress’ enforcement power given to it by §5 is just that. Free Exercise Clause.
If there is no remedy. 5. not the power. Katzenback v. FACTS: Congress was concerned that the states’ judicial systems were not taking gender-motivated violence against women sufficiently seriously. Consider this: whether distinctions between commerce power and taxing power make it easier to determine motive. What the statute does is substantive or remedial: a. “Congruence and proportionality” test: Congress must have wide latitude in determining where the line is b/w an appropriate remedial provision and an improper substantive re-definition of a 14th amendment right. Substantive: defines a right. Morrison v. statute is constitutional. US A. this statute is targeted at substance abusers. The D by arguing that the act as beyond Congress’ powers.Downloaded From OutlineDepot.com which allows for more regulation of religion. The way the court is going to decide whether Congress has power under section 5 of 14th Amendment is to look at the injury and then look at the remedy and look to see if the remedy is congruent and proportionate to the injury. Court says it’s not remedial. including its Commerce power. Burden is on the state to prove that there is a COMPELLING INTERST and that it is LEAST RESTRICTIVE. Congress has been given the power to enforce. not the power to determine what constitutes a constitutional violation. What kinds of evidence? Nothing suggesting that city/state has been going after these rights. You need evidence the kind of evidence that says that there is an injury and the target of the provision has been violated. Moreover. 9. Look at the NATURE OF THE INJURY and HOW THE COURT HAS DETERMINED THE INJURY and the CONGRUENCE AND PRPORTIONALITY OF THE REMEDY THAT HAS BEEN PROVIDED. b.” To enforce that right. A female student at VA tech who said she had been raped by 2 members of the school’s football sued under the Act. 7. HOLDING: the Court agreed w/the Ds that the Act was beyond Congress’ Commerce power. If it is. the nature of the right. the Act then said that a woman who was a victim of such a gender motivated violent crime could bring a civil suit against the perpetrator in federal court. remedial: enforcement mechanism 6. 2. then you have valid remedy. The voting rights act was upheld in this case. Congress could. and did. 8. It’s not unconstitutional to adopt laws of applicability that don’t target religion. B. C. Morgan 1. prohibit states w/a history of voting-rights violations from applying literacy tests. 3. “There must be a congruence and proportionality b/w the injury to be prevented or remedied and the means adopted to that end. B. The majority opinion by Chief Justice Rehnquist relied 11 . There is no evidence of intent to discriminate or to target this religious faith. 4. Not congruent nor proportiontoo out of proportion to responding to unconstitutional behavior. Congress passed an act that announced that all persons within the US “shall have the right to be free from crimes of violence motivated by gender.
Morgan o Provision prohibiting state from requiring Puerto Rican U. there’s no evidence that it was aimed at certain religion. the NY literacy test was discriminatory against Puerto Ricans in NY. D. 12 . • Boerne v. Class Notes Section 5 of the 14th Amendment • How do the courts decide whether Congress has the power under section 5 the 14th Amendment to enact legislation? o Whether the statutory provision/remedy is proportional and congruent to the injury to be prevented or remedied. Morrison o Statute creating a private civil cause of action against perpetrators of gender motivated violence not congruent and proportional b/c the remedy is directed at private actors and the 14th Amendment generally applies to state actors. C. citizens w/6th grade education in Puerto Rico to pass English literacy test to exercise the franchise is a means to secure Puerto Ricans nondiscriminatory treatment by the government. we would allow Congress to regulate any crime as long as the nationwide aggregated impact of that crime has substantial effects. o This statute applied to every single level of government. Gender motivated crimes of violence are not. 1) Identify the injury (Look to how the court has treated the injury and that is going to inform whether Congress may treat it as an injury) • Katzenbach v. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity. (Congress can prevent/deter an injury through remedy). something that is prohibited by the Equal Protection Clause. Flores o Provision requiring state/local governments to have a compelling interest in order to burden religious rights not proportional or congruent because not designed to prevent unconstitutional violations. • United States v.Downloaded From OutlineDepot. o The proportional and congruent test was after Katzenbach and was not the majority opinion o Court decided that English literacy test did not violate constitutional. 1) No evidence that state or local governments have been targeting or acting w/animus towards a religion or religions 2) Sweeping coverage—applies to every level of government w/no termination date.com principally on the fact that the activity being regulated was essentially noneconomic. If we allowed Congress to regulate this. no evidence that state systematic or nationally uniform remedy does not involve any state actor. Congress may seek to deter or remedy unconstitutional conduct even if the process it prohibits conduct which is not itself unconstitutional.S. economic activity. The literacy test was targeted at Puerto Ricans so this is what makes it unconstitutional. in any sense of the phrase.
and brought a habeas corpus proceeding. The judicial power has always been subject to limitations – some are imposed constitutionally. But jurisdiction is conferred “with such exceptions and under such regulations as Congress shall make. was jailed for printing incendiary and libelous articles. o It matters how the court defines the injury o Court here looks to see who the actor is. §2 cl. proportional and congruent b/c its directed against state actors and intentional discrimination on the basis of sex is a serious injury and thus it is proportional and congruent. Does Congress have power to? o Statutes give private individuals the right to bring a cause of action against states for engaging in intentional discrimination on the basis of sex? 1) Yes? It is against a state actor (Morrison). (RE: appellate jurisdiction – conferred by Constitution to Congress) Facts: Appeal from denial of habeas corpus. Congress passed an act forbidding the court jurisdiction over the matter. the injury is serious… but you need more to show state failure and that it is not congruent and proportional. under the Constitution. The authority of Congress to control the jurisdiction of the Supreme Court is not unlimited.com • o The problem here is the injury and who it is that engages in the remedy. In fact. the right involves a constitutionally protected rightintentional discrimination (Morrison). Appellate jurisdiction for this Court is not derived from acts of Congress. Art III.” The Constitution also gives Congress the express power to make exception to that jurisdiction. jurisdiction is nevertheless conferred “with such exceptions and under such regulations as Congress shall make”. but from the Constitution. 13 .. The remedy is to allow citizens to sue their government for discriminatory practices. but from the language of the Constitution. Issue: Does Congress have the power.” 4. Congressional Limits on Judicial Power Limitations on the Judicial Power i.Downloaded From OutlineDepot. others are imposed by the SC Art III establishes the judiciary and imposes limitations on the scope of judicial authority appellate jurisdiction “with such Exceptions. 3. (sweeping coverage —applies to every level of government w/no termination date). No evidence that state has been bad guy. and under such Regulations as the Congress shall make. a MS newspaper editor. 2. to make exceptions to the appellate jurisdiction of the Supreme Court? Holding: Yes. 2) NO! Argue the other side: yes. McCardle is clearly an example of judicial restraint. Jurisdiction is the authority given to a legal body or to a political leader to adjudicate and enforce legal matters. 2 gives the SC original jurisdiction and gives the Court Ex Parte McCardle-Congress has the constitutional power to make exceptions and regulations regarding the Supreme Court’s appellate jurisdiction. Def. Congressional Control of Judicial Power 1. Rule: Although appellate jurisdiction for the Supreme Court is not derived from acts of Congress. statute is too broad.
• o • Rule o • Art III §1 directs the judicial power of the US shall be vested in one SC and in such inferior Courts as the Congress may from time to time establish No. the law can appear inconsistent. it doesn’t violate Art III The AC read the statute as authorizing the CFTC to take jurisdiction over Conti’s counterclaims. 1.Downloaded From OutlineDepot. Schor • Facts o o • Pro His o • Issue o Whether the Commodity Exchange Act (CEA or Act) empowers the CFTC (or Commission) to entertain state law counterclaims in reparation proceedings and if so. whether that grant of authority violates Art III of the Constitution. And due process of the laws (the 5th Am does this as well but didn’t include equal protection) The following case considers a claim that such an “agency court” violates the Constitution’s vesting of “the judicial power of the US” with Art III courts. It moves with case law. Only when cases can’t be reconciled does the Court come into the controversy. CEA broadly prohibits fraudulent and manipulative conduct in connection w/ commodity futures transactions Congress created an indep agency. Guarantees equal protection of/under the laws of all US ppl 3. and conversely the extent to o 14 . We granted certiorari and now reverse. Law is a flexible organ. Commodity Futures Trading Commission (CFTC) v. As a result. Birth-right citizenship (of everyone born in US) 2. an admin agency whose adjudicatory officers do not enjoy the tenure and salary protections embodied in Art III The essential attributes of judicial power are reserved to Art III courts. the CFTC and entrusted to it sweeping authority to implement the CEA Whether the CFTC’s assumption of jurisdiction over common law counterclaims violates Art III of the Constitution Reasoning/Arguments o Def – Schor claims that these provisions prohibit Congress from authorizing the initial adjudication of common law counterclaims by the CFTC.com Ex Parte McCardle 14th Amendment created Just because an issue hasn’t been before the Court doesn’t mean it is constitutional. It just remains an open question.
a. 4. Cons:????? a. Origin of political question doctrine also in dicta to this case where the court said that there may be political cases that should not be heard by the court. controversies. Carr 15 . c. Judiciary has decided that it will not override an act of another organ of government. d. Political Question Doctrine 1. Variance of concept of justiciability. not on allocating jurisdiction among federal tribunals. A matter committed to Congress or President. A voluntary doctrine though grounded in the Constitution and the idea of separation of powers. Carr A. b. Helps define judicial role b. Marbury established the power of the court to hear cases. must be looked at case-by-case o Looking beyond form to the substance of what Congress has done. A self-imposed limit on the power of the courts a. Helps conserve judicial resources – don’t hear as many cases c. B. No textual basis for the doctrine. and rulings that may have the effect of voiding an act of a representative branch of government. The courts are not a political institution because they are not elected.Downloaded From OutlineDepot. Promotes fairness – litigants must have standing – no third party complaints. we are persuaded that the o Political Question Doctrine – Baker v. 6. its primary focus was on making effective a specific and limited fed regulatory scheme. 3. Congress intended to create an inexpensive and expeditious alt forum through which customers could enforce the provisions of the CEA against prof brokers Cant effectively employ bright line rules re: Art III. 5. Pros of political question doctrine:????? a. adjudicative function does not create a substantial threat to the separation of powers o o Congress gave the CFTC the authority to adjudicate such matters When Congress authorized the CFTC to adjudicate counterclaims. 2. some people will be left without redress. By restraining itself. Baker v. Improves decision-making – if decision will not help the status of the parties (live controversy) there is no point in hearing it.com which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Art III courts the original and importance of the right to be adjudicated and the concerns that drove Congress to depart from the requirements of Art III o o In this cases – there is little practical reason to find that this single deviation from the agency model is fatal to the congressional scheme The CEA scheme in fact hews closely to the agency model approved by the Court congressional authorization of limited CFTC jurisdiction over a narrow class of common law claims as an incident to the CFTC’s primary and unchallenged.
The fact that the suit seeks protection of a political right does not mean that it is necessarily a political question. 60-year-old Tennessee apportionment system attacked as obsolete. or o The potential for embarrassment from various pronouncements on a single issue by different department of government. This challenge presents no nonjusticiable “political question”. It has been argued that apportionment cases involve no federal constitutional right except one resting on Article IV § 4.Downloaded From OutlineDepot. Does an equal protection claim complaining of the mal-apportionment of a state assembly constitute a non-justicable political question. POLITICAL QUESTION-A question involving the use of discretionary authority by Congress or the Executive Branch. REVERSED. but an equal protection (14th Amendment) claim may be used where it does not implicate a political questions. which the federal courts may not address? No.S. shall guarantee to every state in this Union a Republican form of government. or 16 . The case here neither rests upon nor implicates the guaranty clause. which guarantees a republican form of government. GUARANTY CLAUSE-A clause in Article IV § 4 that (all three branches) the U. or o The impossibility of a court’s deciding the issue without an initial policy determination of a kind clearly for non-judicial discretion. The Guaranty Clause guarantees a republican form of government. the districts have not been reapportioned since 1901. Vote dilution-one district has more significant voters than others but the same number of representatives. or o An unusual need for adherence to a political decision already made. EQUAL PROTECTION CLAUSE-A 14th Amendment clause providing that persons under the same circumstances shall be afforded the same constitutional rights. The clause may not be used as a source of constitutional standard for invalidating state action. Any case involving a political question is found o A textual commitment-a constitutionally assigned duty or power to a branch of gov’t. or o A lack of judicially manageable standards for solving the question. o The impossibility of a court’s undertaking independent resolution without expressing a lack of respect to other branches of government. Rule: Issue: Holding: Political questions are best left to the President or Congress. Tennessee voters seek reapportionment of state assembly districts.com Facts: Appeal from denial of injunction/challenge to state against apportionment & elections.
Downloaded From OutlineDepot. Article III of the Constitution limits federal jurisdiction to “cases and controversies”. Political questions are generally determined on a case-by-case basis. or political rights. the case should not be dismissed on the grounds that it is a political question. Political Questions vs. The question of standing is whether a litigant is entitled to 17 Rule: Issue: Holding: . Parents sued IRS for granting tax-exempt status to discriminatory private schools. thereby interfering with desegregation of their public schools. which may have constitutional dimensions but are of a nature that they should be resolved in the political arena. There is a lack of manageable standards for judicial resolution. to allege a personal injury fairly traceable to the Def’s allegedly unlawful conduct and likely to be redressed by the requested relief. Standing requires a Plt. Justiciable Controversy: The Court will not decide questions that are political on the basis of the separation of powers.e. congressional membership. i. constitutional amendments. injunctive relief in a class action civil rights suit. Standing 1. to claim a personal injury fairly traceable to the Def’s allegedly unlawful conduct and likely to be redressed by the requested relief? Yes. or if there is a lack of judicially discoverable and manageable standard for resolving it. Federal aid to private school caused alleged injury. Political issues with constitutional dimensions generally are fair game for judicial review. Wright Facts: Blk. An issue is a non-justiciable. i. or o Diplomacy If none of these circumstances is present. foreign relations. and There is difficulty or impossibility of devising effective judicial remedies. military organization.e.com o Criteria for deciding issue. Appeal of judgment granting declaratory relief. Does standing require a Plt. Political questions usually involve foreign relations. political question if the Constitution has committed it to another branch of government. political party disputes. There is a need for finality in the action of the political branches. Political questions are issues. Allen v. A question is political if: There is a demonstrable constitutional commitment of the issue to the political branches.
The injury must be traceable to causation.com have the court decide the merits of the case.e. A stigmatic injury has to apply to a small. stigmatic harm. therefore the parents of the private school children would have standing. and (3) requires that a complaint fall within the zone of interests protected by the law invoked. Public school kids. The court dismissed the first claim as too abstract. and (2) impairment of their ability to have their schools desegregated. Stigmatic injuries could be difficult to prove. LUJAN v. Defendants seek to have the Endangered Species Act interpreted 18 . particular group. The Government action only affected the private school because they get the benefit of the exemption. The remedy must be redressable. not the Court’s. (1) direct harm from the mere fact of federal aid to discriminatory private schools. Membership in a minority group is insufficient alone to afford standing. since the causation component is too attenuated. They claimed that the taxexemption was making it easier for parents to choose a private school over a public school. DEFENDERS OF WILDLIFE Fatcs: Appeal from a denial of motion for Summary Judgment for lack of standing. It was the opinion of the Court that holding in favor of the black parents would open the floodgates because then everyone would have standing to sue. It’s the President’s job to enforce the law. NOTES: The injury cannot be abstract. as a group.Downloaded From OutlineDepot. Judgment reversed. Standing doctrine (1) prohibits litigants from raising another person’s rights. The most significant constitutional element is the “injury in fact” requirement. i. No third party can assert a claim. not the parents of public school kids. The parents claimed two injuries. A federal court is not the proper forum for general complaints about the way that the government conducts its business. is too large. ** It would be the President’s job to enforce the law in this case. 2. (2) bars courts from adjudicating general grievances more appropriately addressed in the representative branches. **Enforcement of this law by the courts would open the floodgates of litigation because everyone could sue. Allen demonstrates that standing will usually not be found where a litigant claims that a tax incentive has caused a third party to injure him. A stigmatic injury only affects those who were directly harmed according to the Court.
A case is moot if the justiciable controversy that existed at the time the complaint was filed has disappeared. no longer has a stake in the outcome.com to cover government agency activities in foreign countries. Rule: Issue: Congress may not convert the public’s interest in an executive officer’s compliance with a law into an individual right to sue. Lack of consultation can be an injury if it affects immediate residents. Plts argued that the statute injured them. NOT the courts. not discretion. Plts. Holding: Notes: Standing comes into play when: o Government conduct is being challenged as unconstitutional. just those who are directly injured under the federal law. May the public interest in a government agency’s proper administration of the laws be converted into an individual’s right by statute. Are asking that the Sec. Under the principles of judicial self-restraint. It is opposed to a requirement where the court MUST decide on set rules. Zone of Interest. and Plt.Downloaded From OutlineDepot. “Ripeness” involves cases where the issues are sufficiently developed to deserve judicial attention. o Challenge to federal statute Plt must establish that they have standing to raise the dispute.e. Cases and Controversies-The jurisdiction of federal courts is limited to cases 19 . the Court will not decide constitutional issues before it is necessary to do so. i. not legal injury o Caused by government action o And injury is redressable by the Court Congress handles general public grievances in the public arena. white collar crime-shareholders trying to sue and the suit didn’t address share holder concern.if the claim is based on a statute-Is the Plt within the zone of interest? If you are not benefiting of the statute. Courts also say that they will not allow a claim to be brought by a 3rd party. “Mootness” means that changes in the law or facts may render the issue moot as to the individual Plt. a ripeness problem is alleviated if the litigant has already suffered harm. The Court did not interpret the statute to read to give everyone a standing. the authors consider mootness and lack of ripeness of the issues. The injury may be threatened but it needs to be imminent. of State consult with wildlife groups before funding international projects abroad because of the alleged increase in the rate of extinction. Generally. Article III requires: o Injury in fact. thus allowing all citizens to sue? “Questions of timing” serves as barriers to standing. then you cannot sue under this statute.
they won’t pay you a fee until they’ve suffered an injury. • Prudential Standing Requirements o A party must assert only her or his own rights—no third party claims o No generalized grievances (analogous to injury requirement). Advisory opinions cannot be issued.Privacy . not injury to other 6.Downloaded From OutlineDepot. o (injury) o Most cases have standing. (causation b/w injury and challenged act). Why shouldn’t allow third party claims? . The Basic Requirements for Standing (whether plaintiff has sufficient interest in litigation) 1) Plaintiff injured (actual. 3. o All you need is one plaintiff withstanding and your claim is heard. If a matter has been resolved there is no case or controversy. a lot more flexibility) 1) Zone of interest? 2) No third party claims (see Singleton v.Zealous if represent their own rights . when people come to you. plaintiff must be within the zone of interest protected by the statute. Other factors: Prudential limitations (court has not held that they are article III requirements. real. o Tax Claim: You have the right to have the law of the government enforced. There must be a real and immediate threat of harm and danger to the interests of the parties brought about by the conduct of a party or a challenge to that conduct. 3) Injury be redressable by the court 4. Why might people not litigate their own claims? .com and controversies. imminent) 2) Injury caused by Defendant/challenged action. o Plaintiff must allege that favorable federal court decision is likely to redress the injury (redressibility). o If challenging a federal statute. The controversy must be real and substantial. This means the matter must be definite and concrete with parties having adverse legal interests. 20 . Wulff) 3) No generalized grievances 5.Need personal injury.Control the number of claims brought to court . The Court will not review moot cases. • Standing Requirements o Plaintiff must allege that he injury is fairly traceable to the defendant’s conduct (causation).Resources • Article III Standing o Plaintiff must allege that she/he has suffered or imminently will suffer an injury. they will have suffered some sort of injury.
Defenders of Wildlife? o (1) Lack of consultation w/respect to the funded activities abroad increases rate of extinction and threatened species which would frustrate the abilities of the Pls to work w/and observe the affected species. o (3) Animal and vocational nexus injuries: would grant standing to anyone who has an interest in studying the endangered animals everywhere on the globe or to anyone w/a professional interest in such animal. o Vague plans not enough. o Test is intensely factual. (can science support this? Arguably…as science gets better). that is the kind of claim that is always going to be a generalized grievance. this is controversy b/w the branches. o (3) court rejects these theories as “pure speculation and fantasy” to “say that 21 .Downloaded From OutlineDepot.com • • • • • Generally. Coleman? o The tester/renter Pls who were given misinformation have been injured b/c they have been denied their right to truthful information concerning the availability of housing under the statute. On what basis does the Court justify Art. (court is trying to limit the number of people who sue) Problem with that injury? o (1) Not imminent enough b/c both Pls have no immediate or definite plans to return to the sites to work with the threatened species. o The tester who was given no misinformation has not suffered injury to his statutory rights under the statute (no discriminatory misinformation) Threatened or Future Injury? o What were the injuries alleged in Lujan v. o Prevents Courts from reaching out beyond their role in constitutional scheme. Injury in Fact? o What is the injury recognized in Havens Realty Corp v. o (2) Distance matters—the fact that all ecosystems may in fact be dependent on each other and that what happens in one part of the earth affects other parts of the earth does not suffice to establish injury for purposes of standing. o (2)Ecosystem nexus injury—any person who uses any part of a contiguous ecosystem adversely affected by a funded activity has standing regardless of distance. o The statutes we dealt with allowed for statutory injury. o Should avoid “repeated essentially head-on confrontations b/w the life-tenured branch and these representative branches of government. (Injury is not specific enough…didn’t say how much extinction rate would increase…they just said they were likely to increase). o When you have a claim that challenges the implementation of a statute. What does the court tell us about injuries? o Must be distinct and palpable o Not abstract or conjectural or hypothetical. III Standing? o Separation of Powers (court doesn’t want to inject unnecessarily into a controversy between the other two branches).
6. or by citizens or subjects of any foreign state. 4. some states don’t have jurisdiction b/c of state’s enabling statutes. e. Congress cannot overrule this broad meaning. any more than she can sue to recover damages. is appreciably harmed by a single project affecting some portion of that species w/which he has no more specific connection. Suits against cities: does not bar suits against cities. 5. Suits in equity: the amendment applies not only to suits at law. Constitutional embodiment of sovereign immunity: a core constitutional limitation of federal judicial power. the suit is barred even if the suit is filed against the official.Downloaded From OutlineDepot. A private citizen cannot sue to have a state enjoined or ordered to do something. d.com • • anyone who observes or works w/an endangered species. Suits by citizens of the D state: bars suits by a citizen against his/her own state. generalized grievances do not suffice for Article III standing. some federal statutes don’t allow certain issue to be tried in state forum. f. Exceptions: a. whether based on diversity. If state is required to pay out of its own pocket. Expressly or constructively. doesn’t prevent a private individual from suing a state in state court. b. o Justice Kennedy joined by Justice Souter: Congress has power to define injuries. Suits in state court: amendment only applies in federal courts. Suits against officials for $$$: doesn’t bar suits against officials for money damages are to be paid out of the official’s own pocket. Standing focuses mostly on the party asserting the claim whereas most other elements of justiciability focus on the nature of the issue being litigated. Suits involving federal question: This covers federal question suits. boards and other entities associated w/state government. State agencies and other entities: case law is unclear and inconsistent as to when the amendment bars suits against state agencies. Eleventh Amendment and State Sovereign Immunity 1. Suits against officials for injunctions: does not prevent suits against state officials in which the relief sought is an injunction against the violation of federal law. anywhere in the world. 3. c. It blocks all suits by private citizens against state. even to vindicate a federal right. 22 . The 11th Amendment: it imposes limitation on the jurisdiction of federal courts. State must have jurisdiction. not just diversity suits. judicial power of the US shall not be construed to extend to any suit in law or equity. “The 2. but also suits at equity.” Procedural injury? o Citizen suit provision doesn’t mean elimination of the injury in fact requirement. alienage. Suits by federal government: does not bar suits by federal government against a state. commenced or prosecuted against one of the US by citizens of another state. congress must identify the injury it seeks to vindicate and relate it to the class of persons entitled to bring. or federal question. Waiver by state: can be waived by state. Party must have a significant stake in the controversy to merit his being the one to litigate it.
especially those relying on the higher benefits. o State said: If you move from LA to CA. there is a right to travel recognized very early on. o However. the first year of benefit. 23 .com Persisting Controversy Over the Judiciary’s Function Slaughterhouse Cases (1873) Facts: LA passed a law giving a monopoly on N. Therefore. were in the domain of the political processes of the states.one that has had no activity since reconstruction.Downloaded From OutlineDepot. you don’t have a right to welfare. o The court has recognized that the right to travel is recognized under the Equal Protection Clause. the Ps should have looked to LA law for protection. The court viewed the states rather that the Federal Gov’t as a guarantor of a citizen’s civil rights and the Court was unwilling to read the 14th as referring to any civil liberties already within state power to accord. o What’s interesting about this case is that it revitalizes the privileges and immunities clause…. o The court starts out to recognize that the right to travel is one that has been recognized in a number of cases and one under the privileges and immunities clause. Fundamental civil rights. o Is this a burden on your right to travel? o There was a challenge to the statute. Court rejected all arguments. secure and protect. Holding: Saenz v. including free access to seaports and federal protection on the high seas. o Court says: the right to travel embraces the citizen’s equality.O. Butchers not included claimed the statute deprived them of the opportunity to practice their trade. Poverty is of your own making. o The statute clearly is designed to discouraged poor people from coming into the state. violating due process and privileges and immunities. slaughterhouses to a particular company. you get whatever you got in the state that you left. o Court said: there is no right NOT to starve. including the right to practice one’s calling. These rights could not be infringed by any state by virtue of the privileges and immunities clause. o It rejects the state’s argument: the right to travel is a right that is affected only incidentally. The court recognized several rights of national citizenship. Roe o Person moved from LA (lower benefits) to CA (higher benefits).
The Fourteenth amendment. the first ten amendments. non-fundamental. . Nearly all of the guarantees of the Bill of Rights have been interpreted by the Supreme Court as being so important that if a state denies these rights. 4. it is selectively incorporated into the meaning of due process under the Fourteenth Amendment and is binding on the states. Theory goes back to Locke and his inalienable rights. liberty. 14th applies to the states 2. liberty. 5th applies to the federal government b. 1.com Rise of Substantive Due Process Origins of Substantive Due Process. It requires that the states not deprive anyone of life. First. Substantive due process says that there is something inherent vested in certain rights that the government couldn’t take away without sufficient justification. and (2) the Seventh Amendment’s right to jury trial in civil cases. it has taken away an aspect of liberty. Court is using this theory to protect unenumerated rights. a. c. Certain state limits on human conduct are held to so unreasonably interfere w/important human rights that they amount to an unconstitutional denial of liberty. primarily property and contractual rights.Downloaded From OutlineDepot. The only major Bill of Rights guarantees not incorporated (1) the Fifth Amendment’s right not to be subject to a criminal trial w/o a grand jury indictment. Nearly all rights are incorporated into the meaning of due process. or property without due process. enacted in 1868. applicable to states. If so. 5. 9. The two clauses say the same thing – no person shall be deprived of life. Function of SDP is to limit the substantive power of the states to regulate certain areas of human life. or property without due process of law. Traditionally. Due process clause is not the proper place for these protections. liberty. Due process clause is found in the Fifth and Fourteenth Amendments. Also the court was striking down economic regulation by states under the due process clause. or property w/o due process of law. Incorporation: each right in the Rights is examined to see whether it is of “fundamental” importance. Fundamental: strict scrutiny test the statute must be narrowly tailored to serve 24 7. 10. Substantive Due Process: the Fourteenth Amendment provides that no state shall make or enforce any law which shall deprive any person of life. Pre 1937 economic regulation by Congress was struck down on the basis of the commerce clause. 6. it is the privileges and immunities clause in the 14th amendment. liberty. Question is what are these rights? In 19th century. One major function of the Fourteenth Amendment’s Due Process Clause is to make the Bill of Rights. due process is a procedural concept – procedures that need to take place before government can deprive of life. or property. b. Arguments against: a. 3. 8. changed this rule. 11. need to distinguish fundamental v.
The employee might get a guarantee of some sort of income). 16. Fundamental rights are ones related to “rights of privacy” and “right of autonomy. or property. Carolene Products: court made clear that a presumption of constitutionality would be applied in case of economic regulation subjected to due process attack. Economic rights b.com o 12. Economic Rights: Ks Clause/Takings Clause • Due Process 1. Shifts the burden of persuasion on the state to show that it’s pursuing a compelling objective and the means chosen are necessary to achieve that objective. The existence of facts supporting legislative judgment is to be presumed. one in which there is a K and it is in writing and gives some type of protection…there is an exchange of something.” Birth Control Abortion Family relations (family life. This is a minimum rationality standard coupled w/a presumption of constitutionality. o Court in Lochner: state does not have a reasonable ground for interfering w/the 25 • . Non-fundamental: rational basis test state must have a legitimate governmental objective w/a means that is rationally related to that interest. direct upbringing and children’s education). Procedural Contracts (At will relationship. US v. The modern court has withdrawn almost completely from the business of reviewing state legislative economic regulation for substantive due process violations. Substantive a. for regulatory regulation affecting ordinary commercial transactions is not to be unconstitutional unless it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of legislatures. It gave substantial weight to the state’s interest in redressing women’s inferior bargaining power. a compelling government interest. Court hasn’t struck down an economic regulation for violating substantive due process. Minimum wage interfered w/freedom of K but the readjustment of economic bargaining power in order to enable workers to obtain a living wage was a legitimate limitation on that freedom of K. 17. Procedural due process: requires that the state act w/adequate or fair procedures when it deprives a person of life. live together. The court mentioned the state’s interest in protecting the health of women. 13. o o o 14.Downloaded From OutlineDepot. raising children. West Coast Hotel: court upheld a state minimum wage law for women. 15. Court sustained against a due process attack a federal prohibition on the interstate shipment of “filled” milk. liberty. Congress acted upon findings of fact showing a public health danger from filled milk. Other rights? From Caroline Products/Meyer/Griswold 2.
whether prejudice against discrete and insular minorities. o Generally when we’re looking at regulation of commercial activity and we’re looking at a due process challenge. propertyyou have to go thru a proper procedure & how much 26 . o The state always needs a legitimate purpose. national. OR perhaps when there is restriction on the political process…for the courts to have more control (gerrymandering). the citizens may not be in the position to take care of the problem. Allowing somebody might impair their health. o Legitimate purpose is part of rational basis scrutiny as opposed to heightened/strict scrutiny.com • • right of free K by determining the hours of labor. there will be heightened scrutiny. or racial minorities. o There is a concern that we don’t have commercial actors. The state isn’t trying to regulate the health. o What’s the difference of substantive and procedural due process? P: to deny you of life. but it puts to sleep the Lochner doctrine. o Is it right to let the legislature decide if the heart of that issue is part of Due Process. liberty. we’re looking at rational scrutiny (Carolene Product. o Sex discrimination: distinguishing b/w men and women…women are entitled to minimum wage protection as opposed to men…there is no legitimate state purpose. There has to be a more important governmental interest. This purpose goes back to their police powers. the economic right being protected needs to be a relative tight fit w/the purpose being protected. o In Lochner. Can we make the same argument w/commercial actors? o Legislature in regulating commercial actors o Where it is regulating its processes/franchises those things that will affect the citizens. but the employment relationship that is protected under the Due Process Clause. it makes sense for Congress to take a more rigorous role. Takings 5th Amendment Due Process: what does Carolene tell us? Same standard applied to state regulation of commercial activity. o Should courts be involved? Statutes directed at particular religious. It suggests when it may make sense to courts to more rigorously scrutinize state enacted legislation for potential violation.) o Rational Scrutiny REQUIRES legitimate state interest. etc. Probably there is a narrower scope for the presumption of constitutionality when you have a specific provision in the bill of rights where it might not make sense to make a presumption.Downloaded From OutlineDepot. There is a presumption of constitutionality. o It is proper for the court to assume that the legislature is acting correctly in ordinarily commercial transaction and should as to such character o What rational for it to make sense for the Court to adopt this test? o Footnote 4 of Carolene Products: has nothing to do w/individual rights: Lochner has never been overruled. Nebbia.
welfare. PUBLIC USE o Is there a taking? o Is there just compensation? o In cases where there is a physical taking of land or physical invasion it is clear that there is taking. o If it interferes w/too many of those sticks (from the bundle). Ks look to the law to be enforced. The supreme court is of taking private property. it is a taking. and safety of its citizens. o The state or the city to tell the landowner not to use a land in a way that won’t harm the neighbor or not cause a public nuisance. Are you entitled to it. o The point at which a regulatory use of land becomes a taking is when there is a substantial taking of those uses. Not everyone agrees. it might cause other homes to subside. Are you going to scrutinize the legislation? o Then we need to ask if the state is regulating for a legitimate purpose? Legitimate purpose=Anything that is within its police power. they protect morals also. o We have to look at the state’s police powers: when it’s acting to protect the health.com • • due process do you get before it’s affected by government. o What point is it a just a permissible regulation of land (no taking) and what point do you have taking (where they are required to give you just compensation)? o In Penn Coal: state law prohibited Coal Mining to mine underneath existing property. Wanted to sell land…when you dig under some homes.” Court says it doesn’t mean to completely freeze states from regulating Ks…in essence. then you get process. o Only if the restriction is severe are we really going to scrutinize whether the state’s purpose of impairing the K is legitimate. It protects the activity and limits the governmental conduct. o Morals=not a standalone provision. and if you are. and question is how much of it do you get and what exactly do you get? o Substantive: some things that the government can’t do or interfere w/except in the least restrictive manner when it is essential that it do so. o It’s hard to know which one the court is looking at…they all CONTRACTUAL ACTORS o One of those rights in the body of constitution “no state shall pass any law impairing the obligations of K. You need substantial impairment of contractual obligations and rights. State passed a law that said they couldn’t do it. o Regulatory taking: regulatory restrictions on land. o You can have degrees of taking. o Court says this is entitled to weight. Sometimes not alone enough. o Courts should defer to the legislative will/decision that the purpose justifies the restriction. o We have to interpret it differently.Downloaded From OutlineDepot. Sometimes. o Lucas: comes out of property common law principle. To do that. state must pay 27 . o It relates to your ownership and potential uses. There is some sort of activity/conduct that cannot be interfered with. Morals are subjective.
com • compensation. OR . Can still transfer parcel. those houses along the beach cause erosion. When hurricane does come. State passed law that prohibited from building permanent buildings on parcels. we look at each case as it comes to it. houses are the first to go and homeowners are going to want government to rebuild the property. It’s ad hoc…factual determination. 6th right to counsel. Do the first 8 amendments of the Bill of rights apply to states? Different arguments/views on this: some say it is directed only at federal government There are subsequent cases that continue to push the issue: from perspective from individual persons. 8th amendment prohibition of funds. He knew there was a restriction on beachfront property. o Why did SC adopt this law? Those items make a difference. right to jury (selective incorporation). the 7th amendment right to jury in civil cases. There was an ordinance that prevented to build up.Downloaded From OutlineDepot. we have an interest in preserving beach. What should the state do? Repeal the law or just pay? It should just repeal the law and let the homeowners sue. LUCAS o Developer who wanted to build along beaches. the 5th amendment right to a grand jury to indictment in criminal cases.So rooted so in the tradition and conscience of our people as to be fundamental. PA can’t afford to pay all the homeowners. whether the right is: . it is unfair that it applies only to federal government and not state government. o SC is being reasonable. Wants to protect the state from more devastating loss and doesn’t want to pay for existing houses.Among those fundamental principles of liberty and justice The court formally adopts what we call selective incorporation: some rights are incorporated to our system of justice (those that are fundamental) and some rights are not. and harm is not of great magnitude. Older houses are grandfathered in. Incorporation (305-319 and supplement: Heller). We accept the fact that value may be diminished. . It can still continue to operate it the way it has been operated. To determine which rights in the Bill of Rights is incorporated. The court has told us: there is no difference in the 1st amendment. no difference. the beach makes a difference. Some rights were rejected as being fundamental in the sense that they are incorporated. part of comprehensive zoning plan. Even though significance decrease in value. 3rd amendment right not to have soldiers ordered in a person’s home. but they could transfer the right. Which rights are not incorporated? 2nd amendment right to bear armscourt is currently deciding that issue. 4th. o In Penn Central: want to build above land…airspace. no difference.A fundamental right may be a right implicit in the concept of ordered liberty. o Is SC going to have to pay just compensation to houses that haven’t been built or it could just walk away. Wanted to build up…sell that right. the city is not targeting Penn Central. • • • • • • • • • 28 . Court says it’s okay. Why should you not have those same rights when it comes to state government? Slaughter House: first time argument is made…Privileges for immunities clause of the 14th: case said NO…immunities protected under 14th is not what is protected in the Bill of Rights. Thru the 14th Amendment Due Process Clausewe get 2-3 views as to what these rights might be.
Ex. Bolton. When medina states her complain. Roe v. we have a religious right to give our children religious instruction thru an elementary school…. If Medina was filing a complaint in LA. how would she state her source of law? Under the substantive due process of 14th. The first step is recognizing that the right to privacy is a fundamental right.com • • • • Persons who are non-citizens…might this make a difference whether it is a state/federal government is doing the regulation. How do we state this? This statute violates the first amendment as incorporated by the 14th amendment due process clause. The court applied a “mere rationality test” rather than SS. included many non-economic. challenged the TX abortion laws which made abortion illegal except for the purpose of saving the mother’s life. Nebraska Summary: USSC struck down a state law which prohibited the teaching of foreign languages to young children. but the scope of it.Downloaded From OutlineDepot. We’re not talking about whether the right is incorporated. State does have an interest in (a) protecting women’s health and (b) protecting the potentiality of life. The court balanced the risk of pregnancy against the risk of abortion. but nonetheless important.for this. we have a liberty right to exercise control and care and custody of our children. were among these. Modern Substantive Due Process Meyer v. the court must see if the infringement passes strict scrutiny (compelling state interest). Next. Parallel GA statute involved in Doe v. The scope of the right may be regulated. and that of students to acquire knowledge. LA has a statute that says that all children have to go to public schools and parent A comes to Medina. we NEED incorporation. The court held that the term “liberty” as used in the Fourteenth Amendment. • The compelling interest to the mother in privacy is present during the first trimester – no state interest. would you represent us and file a complaint and say that is unconstitutional. Under 1st. rights. an unmarried pregnant woman. The statute unconstitutionally interferes with the right to privacy. Wade Facts: Roe. The court finds this right through the fourteenth amendment. The risk of pregnancy in the first trimester is greater than the risk of 29 Holding: Rationale: . Must determine at what point during the pregnancy the state interest becomes compelling enough to allow regulation (when contrasted with the mother’s interest in privacy). The rights of teacher ot teach. but said the statue was w/o reasonable relation to state.
Informed consent provision: • Woman had to receive information about the procedure • Woman had to wait twenty-four hours after receiving the information before getting the abortion. PA v. No textual basis in the constitution. 2. 30 . May ban abortion after viability if the woman’s health is not in danger. Rationale: Minors had to get parental consent (but it contained a judicial bypass provision) Married women had to inform husbands of their intent. There is no substantive due process. Planned Parenthood of S. • Excerpt from the oral arguments highlights the issue of whether the fetus is a person subject to constitutional protections. The court decides not to make that determination.E. • Dissent felt that the right of privacy was an unfounded right. State’s power to restrict abortions after viability if the woman’s health is not in danger. Reporting requirements for facilities that performed the abortions. Was the PA statute unconstitutional on its face in light of Roe? The statute was constitutional except for the spousal consent Court began its analysis by affirming its central holding in Roe. The central holding had three parts: 1. Casey Facts: PA Abortion Control Act required the following things in order for a woman to get an abortion: 1. State may regulate any aspect after this. 2. the state may regulate the procedure in the interest in maternal health because the risk of the abortion to the mother is increased. 3. 4. Court’s invalidation of first trimester restrictions is judiciary legislating.com • • abortion. Issue: Holding: provision. State also has a compelling interest in the health of the mother at this point.Downloaded From OutlineDepot. The right of a woman to choose abortion before viability without undue interference from the state. After the first trimester. The state’s compelling interest to potential life is at viability (where the fetus is capable of living outside of the mother’s body).
com 3. The state can promote a pro-life policy to try to limit abortion because of its interest in promoting childbirth from conception (can make obtaining an abortion more difficult or costly).Downloaded From OutlineDepot. This makes women more aware of the consequences. but. however. be an inconvenience to many rural women who must make two trips because of the waiting period. and changed the point of viability. Cruzan and its line deal with personal autonomy and the right to make decisions regarding medical treatment. • Goes into a discussion of stare decisis. Now the state can regulate abortion from conception • Thus. Court announces a new standard: the undue burden standard. Applying to the provisions of the statute: 1. a burden to some does not 31 • . Informed consent – not an undue burden. Sets the standard to apply when overruling precedent: look to changes in the factual predicate for the decision. Also. Next addresses the development of post-Roe case law. could also begin population control. Court addresses the pressure to overturn Roe – this is not a sufficient reason to overturn a decision. A state cannot place an undue burden on a woman’s right to obtain an abortion before viability. whether it is unworkable . • Court reassesses the state’s interest and rejects the trimester framework. neither of which has undermined the right Roe found in the fourteenth amendment: Notes: • • Griswold and its line of cases protect marital privacy and sexual intimacy. but the trimester system can be overruled because of medical advances which have changed the risks of abortion. the Casey court interpreted the third part of Roe’s central holding differently.Roe is not unworkable. pregnancy. If the state could prohibit abortion. has the rule been relied on to the extent that it would be unjust to change it? Women in society have been dependent on this decision. State has a legitimate interest in protecting the health of women and the life of the fetus from the outset of the pregnancy. Would. Two lines of cases.
A person’s decision about how to conduct his family life often 32 Holding: . Thus. The correct standard should be that states may regulate abortion procedures in ways rationally related to a legitimate state interest. In these cases. City of East England Facts: The government may not pass zoning regulations which impair the ability of family members to reside together. 3. invalidate the provision.Downloaded From OutlineDepot. even if the family is an “extended” rather than nuclear one. the act should be upheld in its entirety. Different from minors because they can have more restrictions under the fourteenth amendment. and longstanding American traditions have allowed its prohibition. Abortion involves the purposeful termination of potential life and is thus different from the other areas of privacy like procreation and contraception. the spousal consent requirement would act as prevention. Abortion is not a liberty protected by the Constitution because the Constitution says nothing about it. Rehnquist Dissent: The undue burden standard is an unjustified constitutional compromise that allows the court to closely scrutinize all types of abortion regulations without the constitutional authority to do so. the court can give a decree stating that they do not need the consent. Spousal consent – this was an undue burden in light of the terrible consequences for the millions of abused women. Scalia Dissent: A legislative decision whether to permit abortion on demand. a. Substantive Due Process: Family and Intimacy Interests Moore v. If the kid cannot get the consent.com 2. Parental consent – the judicial bypass provision saved this requirement from being an undue burden. There is no deeply rooted tradition of abortion freedom in our country due to the many prohibitions that have existed since the adoption of the fourteenth amendment. This is a significant change in the law! Other cases had struck down such requirements on the basis of Roe’s trimester system.
Director of Missouri • • • • • • • • • Court considered for the first time whether the US Constitution conferred a right to terminate life-sustaining medical treatment. whereby the next of kin could come in and have the equipment removed. Therefore. The court talks about how at the time suicide is still very much viewed as a morally wrong activity…you don’t have a right to die. these interests were only marginally advanced by the ordinance. preventing overcrowding. Clear and convincing is a pretty high standard…right under beyond reasonable doubt. the state’s interest here is important. Rationale: rights of members of a family. burdens on local school systems). Is the evidentiary standard permissible by the state to deny Nancy her right to have feeding tube removed? Court said that there is a constitutionally protected liberty interest for a COMPETENT person to refuse unwanted medical treatment. and that state impairment of that interest must be examined carefully. the evidentiary standard should be allowed in order for the state to protect incompetent people. You can’t be forced by the state to accept medical treatment if you’re competent. Texas • TX law criminalized homosexual sodomy. but you have a right to refuse medical treatment. Court held that liberty presumes an autonomy of self that includes freedom of thought. The hospital had issues…they were forced to go to court. Missouri had a statute in placed that provided the process. 33 . Glucksberg • Court said there is no fundamental right to die when looking at our nation’s history. Lawrence v. Statute required clear and convincing evidence…. • Washington v. and certain intimate conduct.com rises to a level of fundamental right and state interference must meet strict scrutiny. Lowest level: preponderance evidence. Cruzan v. The state has an interest that whoever is speaking for that person is acting in good faith and that they are really protecting that individual’s inability to speak for himself/herself. even a non-nuclear one. She didn’t leave clear instructions on what to do if she were to be in vegetative condition.Downloaded From OutlineDepot. The case involves liberty of the person both in its spatial and more transcendent dimensions.beyond a reasonable doubt. belief.e. expression. traffic congestion. to live together was a liberty interest. Although the state interests advanced in support of the ordinance were legitimate ones (i. In the case of incompetent person. the court points out. A person’s sexual conduct also receives substantive due process protection.
Receives ambassadors 1) Thought to be more “ceremonial” power. Inherent presidential power? Article II of the Constitution begins. interest to improve quality of life. b. “The executive power shall be vested in a president of the USA.” 2. 1. Prevention of tyranny. this may explain why so many power require Congressional concurrence. separation of power diffuses governmental power thereby diminishing the likelihood that any one branch will be able to use its power against the citizenry. interest in protecting vulnerable groups from abuse. rather leave this to unelected administrative officials. b.Downloaded From OutlineDepot.constitutional effort to allocate different sorts of power among three governmental entities 4. we use rational basis test rather than strict scrutiny. power to make treaties (w/ 2/3rds Senate approval). 6. Supreme Ct. officers. thereby forcing Congress to make the policy choices. Presidential Action affecting Congressional Powers. b. 5. power to grant reprieves & pardons. raises the specter of an increasingly cost-conscious medical system advertenly or unconscious tracking vulnerable populations away from expensive and personally demanding medical treatment or palliative care toward less expensive and easier medical suicide. and coercion. National Powers A. Most military powers are for Congress in Article I 3. a. commander and chief of the armed forces. appointment of ambassadors. Purpose of checks and balancesa. neglect. Most significant power in § 3: “take care” clause. Efficiency because of division of labor among the branches. c.constitutional effort to ensure that the system will be able to guard against usurpation of authority by one branch.“The president shall take care that the laws be faithfully executed. These are considered legitimate interest and not a compelling interest.” Article II then enumerates specific powers of the president: a. unlike abortion. 34 . Recommends legislation to Congress. Justices (w/ 2/3rds Senate approval) 3) Other powers of the president: a. Non delegation doctrine-the principal that Congress may not delegate its legislative power to administrative agencies. b. but enough to make statute constitutional. Separation of power. mistake. by Framers who did not desire a strong executive. Checks & balances. Rational basis: interest preserving human life. Legalization of euthanasia and assisted suicide.com • • • Therefore.
not for military authorities. This is a job for nation’s lawmakers. 2) the take care clause. Executive Power Argument president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. Only Congress can make laws. does he have the power to do this? Next. President usually acts through an executive order. Only Congress can make laws. Now we look at history to see if there is practice…a systematic of similar activities by president and congress just allowed it? Or is he acting alone inconsistent w/practices of other presidents? You could argue…he acts inconsistent w/other presidents but he has Article 2 powers. This is a job for nation’s lawmakers. Preamble says why president has authority to order seizure: says what policies should be adopted and proclaims these policies as rules of conduct to be followed…which is like a statute. President Truman issued an executive order directing the Secretary of Commerce to take possession of the steel mills and to keep them running. not for military authorities. Constitution doesn’t give this power to president or military chief. First thing you’re going to ask. Constitution limits his function in the lawmaking process by recommending of laws he thinks wise and vetoing of laws he thinks is bad. Rationale: • Commander in Chief Argument does not have the ultimate power as such to take possession of private property to keep labor disputes from stopping production. The Court declared the seizure of the steel mills unconstitutional. has the president acted w/authority from Congress or without? Has Congress explicitly said NO you don’t have authority! If there is not explicit authority or no explicit denial of authority. v. Executive Power Argument president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.The leading case addressing the scope of inherent presidential power (the ability of the president to act without express constitutional or statutory authority) Facts: There was a Korean War and steelworkers said they were going on strike.com Youngstown Sheet & Tube Co. Sawyer (1952) . Preamble says why president has authority to order seizure: says what policies should be adopted and proclaims these policies as rules of conduct to be followed…which is like a 35 • • • • • . Commander in Chief Argument commander in chief does not have the ultimate power as such to take possession of private property to keep labor disputes from stopping production. we are in Twilight Zone. Constitution limits his function in the lawmaking process by recommending of laws he thinks wise and vetoing of laws he thinks is bad. Truman believed a steel strike could endanger the national defense and the war effort in Korea because steel was needed for weapons and relied on the following powers to allow an emergency power: 1) commander-in-chief.Downloaded From OutlineDepot. Whether the president has the authority to do a particular thing? When do we use this test? When the president does something. 3) executive power clause.
a. but reserves the power to approve. it can delegate its rulemaking power by: 1) Legislative objective (policy is to be set by Congress. Congress cannot delegate its legislative policy. I and more generally constitutes a Legislative encroachment on the Executive Power. Limits of Executive Powers 36 . b. Such a “legislative veto” violates the bicameralism and /or presentment requirements of lawmaking provided by Art. President may act as long as there is no express constitutional prohibition for him to act and as long as delegating does not violate non-delegation doctrine. Over 200 federal laws contained legislative veto provisions. Legislative vetos also took the form of overturning agency rules by resolution of both houses of Congress or even by action of a congressional committee. Congress must keep its lawmaking powers. Congress may delegate that authority to the President after Congress has made the policy.Downloaded From OutlineDepot. In areas where Congress clearly has authority. But. Legislative Veto – congressional check.) 2) Congress must establish parameters. can delegate rulemaking authority to executive agencies. b. 2. Once Congress has delegated power to Executive Officials. Delegation of Rulemaking Power a.com statute. including when the maximum price should be set. than the standard of yesteryear. Delegates power to the executive branch. Congressional Action Affecting Presidential Powers 1. Legislative veto is a way to stay involved by checking the power. and what items the price may be set on. Congress must provide guidelines to President to implement policies. it cannot reserve the power to set aside the Officials actions pursuant to the delegating statute. There is a less stringent standard today. a. The typical form of a legislative veto provision authorized Congress to overturn an agency’s decision by a resolution of one house of Congress. Constitution doesn’t give this power to president or military chief. Congress included in statute provisions authorizing Congress or one of its houses or committees to overturn and agency’s action by doing something less than adopting a new law. B.
as in Youngstown. Executive agreements are allowed for things necessary to foreign policy matters. which would allow him to shield all communication from a SDT in a criminal proceeding. Nixon challenged a SDT served on him as a 3rd party requiring the production of tapes and documents for use in a criminal prosecution.. 37 . This category of delegation has the strongest presumption of Constitutionality and widest latitude of judicial interpretation. securing the release of American hostages. Nixon refused to turn over tape recordings and documents subpoenaed in the Watergate investigation. Rule: Holding: Rationale: a. Here.S. Nixon Facts: Cert. The agreement called for the termination of all litigation between the governments and the people of the countries. v. granted after denial of a motion to quash a 3rd party SDT. under the International Emergency Powers Act. Court’s rationale for sustaining the action is similar to approach one of Jackson’s concurrence in Youngstown where President was acting with Congressional approval.com Dames and Moore v. Regan (1981) Facts: Presidential executive orders implemented an executive agreement between Iran and the U.Downloaded From OutlineDepot. U.S. we are discussing the presidential power as to the rights of private parties. P had its prejudgment attachment from an Iranian company vacated pursuant to the order. Rule: The President does not enjoy an absolute generalized privilege. b. the court upheld the executive order. Although the authorization did not specifically allow the suspending of claims. it is still constitutional because Congress cannot anticipate every single thing that could occur when it passes legislation. Concerned with protecting liberty. and Curtiss-Wright. The President’s action was taken pursuant to a specific authorization by Congress. Settlement of claims was to be through arbitration.
Downloaded From OutlineDepot. which means the President can be sued while in office for acts occurring before his Presidency.e. • Clinton v. c. d. NOTES: executive privilege. . He serves at the will of the President and is 2nd in command.civil action for damages. e.( for unconstitutional firing) because of a decision made during the Nixon presidency-follows after Nixon resigned. Nixon was claiming a broad. The AG is in charge of the enforcement of federal laws. The Court held that the President is not liable for acts occurring during his Presidency. Jones-unofficial act prior to taking office o Clinton argues for a stay of civil litigation until his term is over to avoid being distracted from his duties as President. Past decisions such as Youngstown show that the courts do have the power to invalidate acts of the executive and the legislative branches.right of the President to keep his communications confidential in certain circumstances. If the Court had allowed this liability (1) no one would be President i. Federal Marshal’s (who serve under the President) would have forced Nixon to comply.com Holding: Nixon’s first claim. too damaging to the Presidency The President would be personally liable • “Official act” is the deciding factor in executive privilege. Nixon. basically Nixon would have had to enforce a SDT against himself-so he resigned. must fail. diplomatic or national security secrets. II) o The Court unanimously ruled out that Art. Fitzgerald v. that separation of powers bars the judiciary from evaluating his claim of privilege. 38 1. II power required a stay of litigation –Article II does not require the Court to grant an automatic stay during the pendency of civil litigation. absolute privilege without any assertion that it is necessary for the protection of the military. but he answers to the President. (Art. It is the job of the judiciary and no other branch to determine what the law is. 2. JUDGMENT OF THE APPELLATE COURT AFFIRMED Perhaps the Court envisioned that if the President claimed and enforced an absolute privilege for his communications he would then be “above the law”. Nixon us about compulsory process.
com (no automatic stay) Art. 1.Downloaded From OutlineDepot. (The Special Prosecutor investigates his boss) • The President needs to be able to speak candidly with his advisors.e. The Foreign Affairs and War Powers We are concerned with whether Congress or President is practicing a power outside of its sphere because of potential encroachments on liberty. Needs of criminal defendants or to ensure sufficient exists and must be balanced with privilege. Article II defines the President’s foreign affairs powers: 1) To make treaties 2) Appoint ambassadors and other public ministers with approval of 39 . President and you are no longer exempt from absolute executive privilege. therefore the President should have executive privilege. Article I § 8 defines Congress’s power in foreign affairs: 1) clause 1 – provide for the common defense 2) clause 2 – commerce with foreign nations 3) clause 4 – naturalization and immigration 4) clause 10 – punish piracies and felonies on the high seas 5) clause 11 – declare war 6) clause 12 – raise and support armies 7) clause 13 – provide for a navy 8) clause 18 – necessary and proper clause b. a. NOTES: • • • • C. Privileges must be narrowly construed. II President ↓ Special Prosecutor →→→→→→→→Once you delegate you may give up some control Mr. i. The Court decided that the needs of the people were so important and must be balanced with the needs of the indicted so-conspirator to be protected to ensure that they are properly convicted. National security or military security needs should be presented before executiver privilege would be effective. o Policy issues o Response of public o Media pressure o Particularly in regards to national security o Controversial issues The needs of the Criminal Justice system must be considered and overrides executive privilege.
The state purports to place a tax on a federal entity. a federal bank cashier. Reconstruction amendments. Art. Issue: (1)Did Congress have the power to create a national bank? (2)Did a state have the power to tax the operation of an institution created by Congress pursuant to its constitutional powers without violating the Constitution? Certain federal powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied from the necessary and proper clause. Other sources of power: a. government establishing a bank.IV § 3 – power to regulate federal lands d d. There was serious disagreement regarding the U.I § 4 – procedure for elections b. Sources and Nature of Legislative Power . Art. Facts: McCullough v.III § 1 – power to create and define lower federal courts c c.S. McCullough issued bank notes in violation of a MD statute providing that no bank without authority from the state could issue bank notes except on stamped paper issued by the state. All three branches of gov’t act 40 Rule: Holding: . The federal constitution and the laws made pursuant to it are supreme and control the Constitution and the laws of the states. 13-15 give the power to make laws. 1. under the necessary and proper clause.I § 8 – the enumerated powers of Congress. 4) Commander-in-Chief Necessary and Proper Clause A. therefore this became a federal issue. Maryland (1819) The relationship between federal and state governments Action arising out of violation of state statute.Main source of legislative power is Art.Downloaded From OutlineDepot. The states have no power to burden the operation of federal laws designed to execute powers vested in the federal government by the Constitution. Like Marbury. McCullough. 3.com Congress. refused to pay a state tax levied on the Bank of the U. Def. this case defines power of federal government when MD taxed the national bank operating in its borders.S. Congress has the power to incorporate a bank. Art. (1) Yes. 3) Ability to recognize a foreign government.
not the states. (b) the control the laws of the U. A power to create implies a power to preserve. A power to destroy is wielded by a different hand. Marshall pointed to the 1) Historical reasons behind the bank. Must be a reasonable relationship between the means and the end.com together therefore there is no tension on this issue. Further. 4. i. Necessary and proper powers are a means to an end. through a bank. (a) The Constitution and the laws made pursuant to the Constitution are supreme.e.S. I § 18) gives Congress the power to pass laws necessary for carrying out the powers it does have. Gov’t taxing national institution is unconstitutional because it is illogical. There is no reason why a bank cannot be formed to carry into execution the powers of the government. i. Necessary and proper clause is a way to execute the enumerated powers. Writ of error. The Constitution does not use the word expressly. 3) Scope of Congressional power is not limited to enumerated powers.S. Fed. . 4) Necessary means useful or desirable. Reasoning: Nature of constitution is a broad outline. so the N&P powers give a way to do this. Enumerated powers are powers in and of themselves. not indispensable. the necessary and proper clause (Art.Downloaded From OutlineDepot. and its absence shows that the powers do not have to be expressly granted to Congress in the enumerated powers. 2) Just because the states ratified the Constitution. Although the enumerated powers do not specifically give the power to create the bank. citizens. not the limits. the Constitution may restrict that power.A writ demanding a lower court to submit the record of a case for review. Justice Marshall opined that states retain the power to tax. the people.The Constitutional provision which allows Congress the ability to make laws “necessary and proper” for the promotion of its enumerated powers. without violating the Constitution. does not mean that they retain ultimate sovereignty.e. ratified the Constitution. and (c) cannot be controlled by them. however. (2)No. Ex: Congress has the power to lay and collect taxes. Necessary and proper clause is listed among the powers of Congress. 41 5. Maryland cannot tax a branch of the U. The articles of confederation stated that the powers "expressly" not provided to Congress are for the states. Necessary and proper clause.. is hostile to and incompatible with these powers to create and to preserve.
” 10th Amendment: Powers not delegated to US. the 10th amendment does not include word “expressly. are delegated to the people. to borrow money. Enumerated powers. S10. that it is the constitution that we are expounding. I. Common usage of necessary is “any means calculated to produce the end” not only those means w/o which the end cannot be attained. except what may be absolutely necessary for executing its inspection laws. they could tax the mail or the mint.” otherwise the granted of express powers would be meaningless. lay any imposts or duties on imports/exports. we must never forget. to levy taxes. Constitution is an outline document. Must be tied to an express power. Contrasts its use here w/the use of word in Art. 9. 11. to declare and conduct war. 10. levy taxes. The people of one state should not have to trust those of another to control the operations of a government to which they have confided their most important and valuable interests. p 2: No state shall. 12. to raise and support armies and navies. 10. Enumerated powers include incidental powers. by the nature of the document and the language used: in consider then. If MD could tax a bank. The state power to tax could be destructive. Compare to: to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.The fact that the enumerated powers don’t’ expressly include the power to charter a bank doesn’t mean that Congress lacks the power to charter a bank…no phrase excludes incidental or implied powers & no phrase requires that everything granted to Congress must be specifically described. The “necessary and proper” Necessary and Proper Clause: Necessary and proper clause is not restrictive clause but an empowering clause. no prohibited by the states. or regulating commerce. p2: absolutely necessary: Art.com 6. to regulate commerce. I. Sec. 42 7. The enumerated powers include a number of powers related t the power to charter a bank. 8. Enumerated powers include implied powers. These express powers include “ample means for their execution.Downloaded From OutlineDepot. w/o consent of congress. and all other powers vested by the constitution in the government of US. The federal gov’t could tax a state bank but not vice versa. . Power to charter a bank is different than the power to declare war. It is not an ends but a means through which other powers are exercisea way to effectuate the other powers. must be interpreted by reference to the whole of the document.
I § 7.Downloaded From OutlineDepot. and presentment. Court has very minimal review.a federal statute authorizing a one house veto of an Att.) Chief Justice Burger continued declaring. General decision is unconstitutional." The effect of the legislative veto was to alter "the legal rights. Chadha was the 1st time the Court gave full review.) (Majority took strict originalist approach. Limits of Congressional Oversight INS v. (Because lawmaking is subject to the “bicameralism and presentment clause” prescribed in Art. Issue: Holding: the Supreme Court declared the legislative veto unconstitutional.com 13. giving the bill to the president to sign or veto. Implied powers. passage by both the house and the Senate. and Chadha. executive branch officials. (The INS is the agency that makes these determinations. and relations of persons. Congress was making a policy decision on when people can be deported. Rationale: Justice Burger’s main premise was that Congress may legislate only if there is bicameralism. duties. Congress by resolution of the House of Representatives overturned an immigration judges decision to allow Chadha to remain in the country. while not expressly stated in the Constitution.powers impliedly delegated to the various branches of government that. Chief Burger 43 . Chadha (1983) Facts: Involved a legislative veto of an adjudicatory proceeding. and when a deportation can be waived.) The Court has almost no role when dealing with aliens. are necessary to effectuate the enumerated powers. Is the one house veto a legislative act? Is it ocnstitutional. "that the action was essentially legislative in purpose and effect. Federalism. including the Attorney General. the court concluded that it was legislation and that it did not fit into any other limited situations under the Constitution where one branch of Congress can act alone.a scheme of government whereby the power to govern is divided between a central and localized government. Federal law gave either house of Congress the authority to overturn an INS decision to suspend deportation. Accordingly.
Downloaded From OutlineDepot.governmental efficiency: much like the dichotomy we saw in Youngstown case). but merely implementing its underlying intent. Also. the court extended its holding to preclude legislative vetoes of agency rules. and this case would not be going beyond the scope of the constitution. (This is consistent with the Framer’s intent WRT checks and balances) Justice White explained that although the legislative veto was not contemplated by the framers of the Constitution. It is now clearly established that if 44 Dissent: 2) . Concur: Justice Powell did not fully reject the concept of the legislative veto as the majority did. He believed that the problem was that the Congress assumed a judicial function in violation of separation of powers. He also stressed the fact that no one would have standing to challenge Chadha’s presence in the US. 1) The dispute among the justices in Chadha was over the proper form of analysis in separation of powers cases. White lamented that the majority in Chadha invalidated "in one fell swoop provisions in more laws enacted by Congress than the court had cumulatively invalidated in its history. Burger emphasized the formal structure prescribed in the Constitution for adopting laws and dismissed the functional concern that the legislative veto was essential to check administrative power. Chief Justice Burger's majority opinion was highly formalistic. Neither the majority nor the dissent addressed whether the legislative veto is actually an effective tool for checking administrative agencies. Justice White wrote a strong dissenting opinion (functionalist approach. He argued that in this case Congress made its own determination regarding individual rights-a function reserved for other branches." White could not spell-out all instances of hardship that could possibly occur. emphasizing the need for the legislative veto as a check on the broad delegations of legislative power. nor were the expansive delegations found in countless statutes creating administrative agency's. Almost immediately after Chadha.com also expressly rejected the position that the legislative veto was necessary to issue adequate checks and balances. he just did not agree with Congress acting as the arbiter of individual rights for the citizens that it legislates in the name of.
Art.not reviewable by the courts Presentment clause. These agencies answer to Art. particularly when it deals with scientific areas it may be more efficient for agencies to deal with those who are affected. Impeachment.Art.com Congress wants to overturn an executive action there must be bicameralism. giving the bill to the president for signature or veto. The Framers did not care that it was cumbersome. Agencies. i. and presentment. Purpose of Article I § 7: The concepts of bicameralism and presentment were derived from the federalist papers: The Framers saw checks and balances as an inherent part and parcel of the doctrine of separation of powers.a result of the rise of federal agencies.a device used to fill in the gaps of legislation. both of which approve all legislation by a majority vote. they felt it was a necessity. passage by both houses of Congress. II to help the President implement federal policy.e. 1) When framers allowed a house to act alone they specifically noted those times i. Bicameral requirement.mechanism used by Congress as a check on the exercise of delegated authority where by Congress reserves for itself the power to override a particular such exercise. Anything less is a legislative veto and legislative vetoes are unconstitutional. 2) Statutes get passed when it goes through both houses and gets signed by the President or he vetos it NOTES: • • • • Non-justiciable. which requires that the legislative branch be divided into 2 houses. appointment of Ambassadors: 1) The more specificity in the constitution the more likely silence means rejection of that power. EEOC. A government with unchecked powers would trample on the rights of citizens. 45 • • • • .Downloaded From OutlineDepot. treaties. The President does not create the agencies the legislature creates the agencies.e. EPA Regulations once implemented are the same as statutes Agencies took hold during the New Deal era. Legislative veto. 1. 1-which requires that all legislation be presented to the President before becoming law. Delegation doctrine. and a necessary conduit for the maintenance of liberty.
Limits of Congressional Oversight Morrison v. which provided for an independent counsel. Not a separation of power problem. Usurpation of executive power becomes a problem. a newly appt’d IC. Olson and others sued after being subpoenaed by Morrison. appointed by judicial branch to investigate and prosecute crimes by certain officials of executive branch. Olson-Supreme Court upholds constitutionality of the Independent Counsel Facts Congress passed a law (Ethics in Gov’t Act). IC could be removed only by AG for “good cause” or by Congress by impeachment. whether to seek or not to seek an IC. Agencies also have investigational powers. Adjudicatory powers-a major exception to this would be immigration because the Court always has the power to decide jurisdiction. b. The Act does not violate separation of powers doctrine b/c it doesn’t restrict the president’s power. IC statute was eventually declared unconstitutional because the removal process conflicted with the separation of powers doctrine. No decision by the AG was reviewable under the Act.com a. IC’s jurisdiction is limited and is decided by the judges The IC has limited tenure The IC is removed by the AG The IC is not appointed by the President or with his approval. c. Congress could delegate to agencies: i. making it unconstitutional. • • • • • An inferior officer can perform only limited and specific duties and is removed by the AG.Downloaded From OutlineDepot. IC interferes with the executive function. There is a point when the delegation gives too much power away. The rule making authority. which mean that theoretically they can pass laws. 46 Rule: Notes: . Heads of agencies report directly to the President. IC could terminate the special prosecutor only for good cause and the executive branch retains ample authority to assure that the counsel is competently perform her statutory responsibilities.
The Court limits Congress’s power especially when it comes to the state. • Should they be immune from lobbyist/being swayed by constituents? • Administration is a huge part of the law and is more practical • Congress can delegate huge amounts of its power. a classic legislative function. etc. Congress can pass a budget and authorize in legislation and what is going to be spent on what and who gets to spends it…who actually controls the money. repeal whatever the agency has done. Court can see if agency acts comports w/policy choices of Congress.com Mistretta v. United States: Congress does have considerable flexibility in assigning to the Judicial Branch tasks that might be considered law-making one. modify. bio-engineering. The court rejected this claim of unconstitutional delegation of law-making authority to US. 47 .Downloaded From OutlineDepot. Congress provided that of the seven voting members. • They can budget their expenses. War Powers 1. How is Congress able to check agency action? • Legislative process: they can amend. • The agency knows what policy choices Congress has made. three had to be federal judges.” Why might Congress delegate to Executive? Limits? • Congress has it b/c it is the legislative branch. Involved the US Sentencing Commission which was set up by Congress to develop mandatory guidelines that federal judges would have to apply in setting sentences for federal crimes. the judiciary plays the major role in sentencing. President is the commander in chief of the armed forces. Now we’re going to rely on experts who know the field and pass laws. Ps claimed that this was assigning to the judges on the Commission not the job of interpreting the law. at least where the subject matter relates to the role of the courts. • The bad part about it is that agency process can be slow. allowing some judges to participate in the making of guidelines for sentences does not threaten the “fundamental structural protection of the constitution. Limits? • Congress wants to exercise control over the delegation. • Expertise usually delegating it to experts…. to define and punish offense against law of nations 2.. and are not there b/c they are experts in chemistry. Congress is given the power to declare war and make rules concerning captures on land and water. • EfficiencyIt is more efficient for Congress to give it to a federal agency • Cost attached to the exercise of power that might make Congress (in political term)unpopular if they do it---so they will delegate to agency to let them take the unpopular bill.one way to garner expertise. but he job of making sentencing policy. It is also given the power to raise and support armies. The Constitution gives both Congress and the President special powers w/respect to war. Members of Congress are politicians. etc… that’s what we get when we create agencies.
or things in interstate commerce—RATIONAL BASIS) • Congress may regulate channels of interstate commerce (interstate roads. at least w/respect to pursuing his claim that he wasn’t an enemy combatant. Rumsfeld : the prisoner Hamdi.com 3. o Needs a jurisdictional nexus 3. The military transferred him to a naval brig in SC. How does the Court determine whether Congress’s legislation is within its commerce power? • Congress may regulate instrumentalities of interstate commerce. 4. Hamdi had the right to due process. navigable waters—RATIONAL BASIS) • Congress may regulate activities even purely local activities. Congress’s Power to Regulate Interstate Commerce 1. Hamdi v. so long as the war in which he had been seized continued. the executive branch obtained the power to hold him in confinement indefinitely.Downloaded From OutlineDepot. Economic or Non-economic? • If the activity being regulated is determined by the Court to be non-economic. then the Court will make its own determination of whether the activity has a substantial effect of interstate commerce and whether the means chosen by Congress is “reasonably related” to Congress’s objective of regulating. Court used the balancing test weighing the government’s interest in the nation’s need for security and his interest in not being deprived of liberty w/o due process. Is Congress acting pursuant to an enumerated power? • • • • • • Commerce Spending Tax Treaty War Foreign Affairs and Immigration 48 . In order to regulate internal affairs. which in the aggregate have a substantial effect in interstate commerce. • If the activity being regulated is economic it would appear to be within Congress’ power to regulate interstate commerce. (people places. The Bush administration asserted that by designating him as an enemy combatant. an American citizen was captured in Afghanistan in 2001because he was an enemy combatant. w/o formal charges or proceedings. congress must be exercising an enumerated power. 2. Congress and the Commerce Clause • The federal legislature is a government of enumerated powers. He had been associated w/the Taliban and surrendered himself.
6. Purpose? • Congress may use its commerce power to accomplish goals not primarily directed at commerce. 8. the Court will not defer to Congress’ judgment that an activity has a substantial effect on interstate commerce and may scrutinize the statute to make its own determination as to whether the non-economical activity has a substantial effect on interstate commerce. pursuant to a license by an act of Congress. 7. o Anti-discrimination statutes o Crime statutes Regulation of States? • Congress may not commandeer state legislative processes as by requiring states to take title to waste. P navigated in this area two steamboats. Gibbons v.Downloaded From OutlineDepot. • Congress may regulate the states pursuant to its commerce power where the law is generally applicable to private entities. Issue: Is navigation within the confines of one state considered commerce within the reach of Congress under the commerce clause? Holding: Yes 49 . • Congress may not conscript the state’s executive officers by requiring them to enforce a federal regulatory program like the Brady Act provisions requiring state law enforcement officers to conduct background checks on prospective handgun purchasers.com 5. gun possession in schools and gender motivated crimes) traditionally left to state control. Ogden (1824) very broad view Facts: NY statute granted D exclusive right to navigate steamboats in state waters. How does a court determine whether activities have a substantial effect on interstate commerce? • If Congress has provided a jurisdictional nexus between the activity being regulated and interstate commerce. • Court will look to whether the activity being regulated is commercial/economic or non-economic/non-commercial. • Congress’ intent to include state bodies in generally applicable laws must be plainly expressed. Deference? • Absent a jurisdictional nexus in the statute and regulation on a noncommercial (like education.
Leaves the question of why the state cannot protect itself. Must contain more than one state. Commerce is intercourse. Second. NOTES: State power vs. court considered what the meaning of "among the states" was. State vs. Police power belongs to the states. Congress. Gibbons defined “commerce” as more than buying or selling an transporting goods over state lines. and Congress can make rules that govern these channels. Prohibition is a form of regulation. it also includes navigation and other forms of intercourse between the states. If some states don't have lotteries. Art. i. they should not be subjected to having the evils in their borders. Similar to drugs or impure food. NOTES: “Outlaws of commerce” are within the Commerce Clause and can be regulated by Congress The court upheld the indictment. defining “regulate” as “prohibit” 50 .Y.Downloaded From OutlineDepot. and this comprehends navigation. Lottery tickets are subjects of commerce because of the evils associated with the tickets. How is this distinguishable from insurance contracts? The lottery ticket itself is evil.e. Gibbons defined “among” as a state’s internal concerns that affect other states Gibbons invokes the Supremacy Clause in overriding the N. However. then the states do not have this power under the 10th amendment. which prohibited interstate carriage of lottery tickets. I power is the most prevalent. This is the foundation case for this type of regulation. Congress can regulate commerce that has an effect on interstate activities. It is not restricted to buying and selling. If Congress has this power under the commerce clause. Navigable waterways are channels of interstate commerce. The word among means intermingled with. but Congress can legislate if there is a jurisdictional basis over these concerns.com Reasoning: First court considered what commerce means. statute Lottery Case (1903) –local control over those things strictly local in nature Holding: Reasoning: Court upheld the Federal Lottery Act.
HARMFUL EFFECTS TEST-Congress may regulate interstate shipping of goods that are “of themselves harmful” Goods produced by child labor do not meet this standard. Shipments from Shreveport to Texas were substantially higher for a shorter distance than from Dallas to Marshall. Issue: Reasoning: Here. Congress cannot regulate commercial activities that occur wholly within the boundaries of an individual state and do not affect other states under its commerce power.Downloaded From OutlineDepot. This is really aimed at preventing unfair competition. Dagenhart (1913) CHILD LABOR Holding: Congress exceeded its power under the commerce clause when it attempted to prohibit the transportation of products of child labor. it is Congress and not the State that is entitles to 51 Rule: . but attempted to end child labor. Defined the end to be regulated. It set a maximum rate for shipments from Shreveport to Texas and ordered the railway to charge. Can Congress regulate the transportation of goods produced in factories employing under aged children as a means of enforcing restrictions on child labor? No. the transportation of goods is not connected to the evil. the statute did not attempt to regulate commerce. not of child labor. Here.com Hamer v. and preventing unfair competition is a matter for the states. TX. as one of unfair competition. Distinguished from Lottery case because the goods made by child labor are not evil in and of themselves. Whenever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other. Notes: Lottery . The goods were harmless and Congress cannot regulate harmless goods.Congress regulating the tickets is a direct means to accomplishing the end of protecting non-lottery states. The Shreveport Case (1914) Facts: ICC fixed interstate RR rates westward from Shreveport to TX markets. The child labor is already completed when the goods are shipped. but Congress can regulate “evil” goods.
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prescribe the final and dominant rule, otherwise Congress would be denied the exercise of its constitutional authority and the State and not the Nation, would be supreme within the national field. Holding: Congress does have the power under the commerce clause to regulate rates charged by states of trains involved in interstate commerce. Reasoning: Congress has right to control operations in matters having a substantial relationship to interstate commerce. States can't use intrastate commerce as a way to control interstate commerce. Courts make an exception for railways because they are instrumentalities of interstate commerce.” NOTES: So, from these cases, the three established areas of commerce clause jurisdiction are: Channels Instrumentalities Local activities having a substantial effect on interstate commerce.
NRLB v. Jones and Laughlin (1937)(New Deal legislation) a more modern view Facts: NLRA was to protect workers. P found that D violated the act by discharging employees at a steel plant for union activity. Court of Appeals held that the act was unconstitutional. Supreme Court reverses. Is the NLRA a wrongful attempt to regulate industry, thus, invading the reserved powers of the states? NO Is an act allowing federal supervision of labor relations a permissible exercise of the Commerce Clause? YES Reasoning: Hammer was just handed down; the Court decided not to overrule it, so distinguished this case on its facts. Court focuses on the steel industry as a whole and on the Depression and the need for action. Steel industry was significant to our nation. Strike in steel industry would have a widespread effect on interstate commerce. In fact, this particular company was spread out all over the country. The steel industry affects all aspects of the economy; it affects vertical and horizontal economy. If an activity has a substantial impact, then Congress can regulate that activity. Employment issues are “in the flow” of commerce and can 52
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substantially affect flow of commerce. However, manufacturing and employment related issues are too indirect. NOTES: Schechter Poultry (1935) – Court held that Congress could not regulate what took place in NY livestock industry because it took place within the confines of the state. Direct Effects Test- Congress may regulate that which has a “direct effect” on interstate commerce, i.e. hours and wages regulated because 90% of poultry came from out of state, which had a direct effect on interstate commerce. Carter Coal (1936) – Court uses proximate cause analysis – this narrows what the commerce clause covers. Wage and hour requirements are too far removed from interstate commerce. This case did not reject the "direct effects" test, but found that there was a direct effect on interstate commerce. In most cases, the Direct Effect Test, will distinguish between national regulation of production (a purely local activity) and commerce. An economic effect, even if slight, gives Congress authority under the Commerce Clause to regulate the activity. Supremacy Clause-if it is granted to the federal government-it is “supreme” and will “trump” a state statute. “Necessary and Proper” clause--- plays a small role in current (modern) affairs US v. Darby (1941)—Modern Commerce Doctrine Facts: Fair Labor Standards Act's purpose was to exclude from interstate commerce goods produced for the commerce under sub-standard labor conditions. This act regulated hours and wages of American workers. Does Congress have the power to prohibit the interstate shipment of goods produced under these conditions? A test which is still in effect today: Power under the commerce clause extends to intrastate activities that have a substantial effect on interstate commerce. This view was a broader interpretation. Though the manufacture of these goods is not interstate commerce, their shipment is; thus, Congress has the power to regulate, as long as the power does not infringe upon some other Constitutional prohibition. 53
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Overruled Dagenhart. Court must decide whether the employment at hand is so related to commerce as to be within the reach of Congress. Here, the court could not question Congress' motive because there was a jurisdictional element in the statute (specifically for goods in commerce). Does not matter if Congress' motive is to regulate unfair competition.
NEW DEAL LEGACY 1. 2. A realist approach, i.e. economic/pragmatic approach (Jones/ McLaughlin) Formalist approach, i.e. Darby, a. Congress prohibited the shipment in interstate commerce of certain goods. b. Regulating directly-Congress directly regulates the wages and hours of employees producing goods for interstate commerce. c. The Darby court justifies the direct regulation as a “necessary and proper” means of enforcing the ban on interstate shipping. Unfair competition-Court justifies the direct regulation on an “independent” ground, i.e. eliminating unfair competition. a. It was lawful to pay substandard/sub minimum wages in some states b. Paying such wages is “unfair” only in that some states chose to require employees there to pay higher wages.
Wickard v. Filburn (1942) Facts: Agricultural Adjustment Act imposed a penalty on D for bushels of wheat produced on his farm in excess of the national allotment. The wheat had been grown specifically for D's family's consumption, and was not sold. Issue: Holding: Reasoning: Is the Act constitutional when it extended federal regulation to production not intended for commerce? Yes There is no catch phrase or formula to determine the power of Congress. Must consider the actual effect on interstate commerce (don't look at direct v. indirect effects). D's consumption of wheat may be trivial, but when considered in the aggregate, with all others doing this, it is a substantial problem. This will affect supply and demand. Even if an activity is local, and not considered commerce, it is within the power of Congress if it exerts a substantial economic effect on interstate commerce. 54
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Heart of Altanta Motel v. U.S. (1964) Facts: P owns and operates motel, and solicits patrons from outside of the state of GA. Seventy-five percent of its guests are from out of state. Refused to rent rooms to blacks, in violation of the Civil Rights Act of 1964. Title II of 1964 Civil Rights Act, required full and equal enjoyment, etc, without discrimination on the basis of race, religion, etc. Hotel and motels providing service or offers to serve transient travelers affected commerce per se. Plt. sought a declaratory judgment that Title II was unconstitutional. Issue: Holding: Reasoning: Does this local activity effect interstate commerce? Yes. The Court upheld the statute as a valid exercise of the power to regulate interstate commerce. Purpose of the act is to provide equal access to public establishments. Discrimination by race burdens interstate commerce because it makes travel for blacks less enjoyable, and discourages them from traveling (this is the jurisdictional link between discrimination and interstate commerce). Does not matter that this is local because the power of Congress to promote interstate commerce also includes the power to regulate local incidents thereof. There was similar analysis as in Jones and Laughlin where the court looked at the industry as a whole. Court acknowledged that in framing Title II, Congress was also dealing with a moral problem. That fact, however, does not detract from the evidence of the disruptive effect racial discrimination has had on commercial intercourse. In this case, aggregating works. It did not matter that the motel was “of purely” local character, because the power of Congress to promote interstate commerce also includes the power to regulate incidents and local activities in both State of origin and destination, which might have a substantial and harmful effect on that commerce. Katzenbach v. McClung (1964)-restaurant discrimination Issue: Whether Title VII, as applied to a restaurant receiving about $70,000 worth of food that has moved in commerce (out of 55
Appeal from reversal of conviction for knowingly possessing a firearm in a school zone. Blacks are shown to spend less at restaurants where discrimination is practiced.commercial vs.S. exchange of money for goods. the less it buys in interstate commerce. direct vs. Court of Appeal reversed ruling that the law was beyond the reach of the Commerce Clause. (Shreveport. v. non commercial. Rule: Congressional authority based on the Commerce Clause extends to activities that implicate: 1) the channels.000 worth of total food) was a valid exercise of the power of Congress. (Jones-. Judicial review must be exercised with great deference. Also. Lopez (1995) Facts: D carried a gun to a TX school in violation of a federal Gun Free Schools Act.com $150. exceed Congress’ power to regulate commerce? Issue: 56 . Holding: Reasoning: Yes Court again applied the rational basis test – it is up to Congress to make the jurisdictional link between discrimination and interstate commerce. indirect effect) Was the act constitutional under the commerce power? Does a federal statute based in the Commerce Clause. consider the aggregation doctrine. Closely connected to interstate commerce because the less food the restaurant sells. Fact that this effect on interstate commerce is inconsequential because Congress determined that it did have a direct effect. to interstate commerce. U. The court only had to find a reasonable relationship between the means used. and Darby-labor relations) 2) the instrumentalities of interstate commerce.S. and the goal of protecting interstate commerce. U. which regulates firearms in a school zone. or the use of channels of interstate commerce (Heart of Atlanta. Also discourages new businesses from forming. Perez-facilitation of commerce) 3) activities having a substantial relation to interstate commerce.Downloaded From OutlineDepot. appealed.
Powers of states are sufficient to control. The Constitution delegates to Congress the right to regulate commerce. Even if guns in school are found in many places.com Holding: No. which is retained by the State. no matter how tenuously it was related to interstate commerce.S. i. b. nor contains a requirement that the possession of the gun be connected to intestate commerce (jurisdictional nexus). violent crime reduces the willingness of individuals to travel to certain areas and may handicap the education process and thereby producing a less productive citizenry (National productivity argument). Reasoning: Need to find whether this has a substantial relationship to interstate commerce. etc.Downloaded From OutlineDepot. Court also rejected the aggregation doctrine. The Court did not agree with the U. Policy considerations are such that. Yes. it still does not have a substantial effect because it is not economic activity.e. Kennedy Concur: traditional state concern. Not substantially related because this is a criminal statute having nothing to do with commerce. Protects local control. It is not an essential part of a larger regulation that can be undercut. Congress could have added the jurisdictional element by stating that the guns had to be from other states. if they could regulate this. because it is not a channel or an instrumentality. 57 . contention of “cost of crime” reasoning: a. Congress made no findings of why and how it affects intestate commerce with which the courts could use to find why the law was passed. Congress could regulate any crime at all. it neither regulates a commercial act. Thomas Concur: Must look to what commerce was when the Constitution was written. This would also allow Congress to regulate all activities that would lead to violent crime. this was an emergency situation and these things take years for hearings Public concern over this problem was high. To follow this rationale would convert commerce power to police power. violent crime which §922 seeks to prevent spreads its cost through the whole population by rising insurance costs. However.
The power was given to broadly construe the clause. Darby/Wickard took a more expanded view of Congress’ authority under the Commerce clause. v. it does not affect interstate commerce. In N. U. It is substantial considering the nature of the dangers. Knight. or Congressional activity to determine Congressional power. The Court also held in Houston v. The Court was looking for a direct effect to be within the Commerce Clause. those limitations based in the Constitution regarding Commerce. It referred to Darby in that do not look at specific activity. In Gibbons-the court noted that this authority is complete in and of itself and may be exercised to its fullest extent and only acknowledges those limitations set out in the Constitution.Downloaded From OutlineDepot.L. v. o However.S. E.A. § 922 contains no jurisdictional element that ensures that firearm possession affects interstate commerce. but indirect activities were out of the reach of Congress. § 922 is a criminal statute and has nothing to do with interstate commerce or any sort of economic enterprise. In U. opting for a standard where Congress could regulate commercial activities with a close enough and substantial relationship to interstate commerce that their control is essential to protect that commerce from burdens and obstructions. Numerous reports generated showed that this did have an effect on interstate commerce. Schechter. look to see if that activity directly effects commerce. (Sugar Refining) the Court held that the power of the Commerce Clause did not extend to activities such as production and manufacturing and mining. must extend from state to state and affect other states as opposed to activity solely taking place within one state. The Court will defer to Congress’ finding that an activity has an effect on interstate commerce. (Shreveport Rate Case) where interstate and intra state commerce are so mingled that full regulation imposes incidental regulations on intrastate commerce.S. Souter Dissent: Guns are articles of commerce and affect commercial activity. The terms “regulate” and “commerce” was defined broadly.R. Jones (Steel case) discarded the direct/indirect distinction. 58 .B. C. the Commerce Clause authorizes regulation. Therefore. (No nexus with interstate commerce) NOTES: Re: The Consumer Protection Act---The Perez case concerned loan sharking.com Breyer Dissent: Must give Congress leeway in finding a rational basis. v. (loan sharking case) he Court held that the Commerce Clause could regulate activities that directly affected interstate commerce. In L.
o Measures that are designed for promotion of health.e. The Dormant Commerce Clause kicks in when Congress has not acted 1. State Regulation of Interstate Commerce • If Congress has not preempted an activity from regulation by the states. it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.com In the Bass (1971) case. The mere existence of the federal commerce power restricts the states from discriminating against or unduly burdening interstate commerce. 2. gun regulation The Court has concluded that a rational basis exist for determining whether a regulated activity sufficiently affects commerce: o Channels of interstate commerce o Instrumentalities of interstate commerce. i. It is a three part test & must satisfy each of the following requirements: 1. safety. I. it is not required that the means used be the best way of achieving that end. directly or indirectly (Only Congress can cause harm to the States). The aim is to have a unified nation. the Court upheld Congressional power to regulate criminal activity. The regulation must be rationally related to that legitimate state end. and o Activities having a substantial relationship to interstate commerce Limits to State Regulatory Power – Dormant or Negative Commerce Clause – DORMANT COMMERCE CLAUSE Under the Modern “Negative” or “Dormant” Commerce Clause doctrine states may not pass laws which impact interstate commerce causing harm to other states. and its effects on interstate commerce are only incidental. AND o Rational relation b/w means and end is all that is required .Downloaded From OutlineDepot. The regulatory burden imposed by the state on interstate commerce must be outweighed by the state’s interest in enforcing its regulation. whether intentionally or unintentionally. o Balancing test: where the statute regulates even handedly to effectuate a legitimate local public interest. 3. and welfare objectives o Courts more skeptical if state’s objective is to promote economic interest of its own residents. or the way which least affects interstate commerce. Regulation must pursue a legitimate state end. states may regulate interstate commerce in a way that does not discriminate against interstate 59 . The out of state residents who are harmed or burdened by another state’s law cannot protest the law because they lack access to the imposing state’s political process.
and welfare of the state’s residents are legitimate and important interest for states to seek to advance • Economic isolation. Noncommercial o In the Healy case. MD local gasoline service owners lobbied for MD to adopt this law. commerce or significantly burden interstate commerce. Incidental o Significant vs. safety. o In state consumers…increased cost of the milk..Downloaded From OutlineDepot. States cannot be allowed to balkanize. Are there less burdensome alternatives for the state to accomplish its purpose? • Exxon case: who is burdened? Arab oil embargo that has resulted in severe gasoline shortage in the US. • States can’t isolate themselves. Non economical o Commercial vs. the preemption is that states may regulate interstate commerce as long as it has not been preempted by Congress) Does the State activity evenhandedly? • Is the statute facially discriminatory (are those that draw a distinction b/w in-state and out-of-staters)? –Per see invalid? • Is the statute facially neutral? • Even if the Does the state regulate for a legitimate purpose? (benefits) • Health. 4. o They gave money to local milk producers so they could lower their milk price and be competitive w/out of state producers.com 2. Insignificant o Economical vs. then you’re going to ask who bears the burden/who is burdened? Who pays the costs? Who wins? Who loses? Who is adversely affected by the statute? Who benefits? • Does the statute outweigh the burden? o Excessive vs. Even if the state is regulating for a legitimate purpose. (when you have a regulation that favors a local producer at the expense of the community as a whole. is there a burden on interstate purpose? (burdens) • If there is a burden. MD statute prohibits…. the dormant commerce clause requires the states to pursue those alternative measures. 5. • Protectionism-States cannot act in a way that protects their own economy to the exclusion of other states. 3. • States may be allowed to burden interstate commerce when they are market participants 60 . is it significant or incidental? • Is the degree of the burden excessive when balanced against the state’s interest? (how do you figure out what the burden is? You’re going to start with the statute.producers and refiners can operate because they are absolutely excluded from the market. and protectionism are not legitimate state purposes. it was the local milk producers that benefitted. to group or band together. then it is invalid. • Who else is burdened? Consumers May states burden interstate commerce? • If there are less burdensome alternatives for the state to accomplish a legitimate purpose. o Out of state milk producers were burdened. The protection of a state’s own economy is not a legitimate goal or purpose. balkanization. 6.
P. which it pasteurized at its two IL plants 65 and 85 miles from Madison. IV—states refrained from treating out of staters differently) and EP (hard to win here b/c of rational basis standard upholding state reg) Dean Milk v. Burdens interstate commerce b/w local truckers go interstate (and vice versa). • Conflict Preemption: If state regulation conflicts w/federal regulation (conflict preemption) • If state regulation treats other states’ citizens differently from their own w/regards to a protected privilege and immunity under Article IV and the state cannot prove that the difference in the treatment is substantially necessary to eliminate the “evil” which the out of staters are creating. • Equal protection under the 14th Amendment: protects al persons so this allows corporations to sue under this clause. based in IL. (just b/c there is an express preemption clause. Chicago public health authorities licensed and inspected these plants under the Chicago ordinance.A’s: Preemption DCC Privileges and Immunities (Art. 7. However. you still have to do a statutory interpretation type analysis to make sure it is valid). While commercial actors are protected under EP Clause. which was patterned after national standards. Other restrains on state’s regulation of commercial activity • Sates may not regulate commercial activity in an arbitrary. b/c corporations are commercial actors. Market for these purposes is defined very narrowly. irrational or capricious manner when treating commercial actors or commercial activity differently.com —regulating a market in which they are participating.O. bought milk from WI and IL farms. 8. • State can regulate if they regulate to accomplish a legitimate purpose—there is rational relationship b/w the purpose and the difference in treatment. Restraints on the State’s ability to Regulate Commercial Actors • Express or impliedly preempted field: If Congress has expressly or impliedly preempted the field.Downloaded From OutlineDepot. Holding: commerce. Potential C. Madison contended that its standards were more rigorous than Chicago’s. the ordinance imposes an undue burden on interstate 61 . court presumes that they generally enjoy adequate resources and can capably protect themselves in political process by lobbying effectively. o LA just passed a law saying trucks have to pay an extra $100 to go b/w Shreveport and NOLA. court only requires there to be a rational relationship b/w discrimination in treatment and legitimate objective. Madison (1951) Facts: a WI ordinance prohibited the sale of milk not processed at approved pasteurization plants within five miles of Madison’s central square.
even in the exercise of unquestioned power to protect the health and safety of its people. like the provision invalidated in Baldwin.com Rationale: The regulation. was a major Minnesota product. Limits to State Regulatory Power Philadelphia v. mostly cardboards). used for making the cardboard containers. USSC that his law was a protectionist measure to resolve legitimate local concerns. In thus erecting an economic barrier protecting a local major industry from competition out of state. nondiscriminatory. The court sustained the statute even though the plastic used for milk cartons was made solely by nonMinnesota firms. The commissioner even testified that Madison consumers would be safeguarded adequately under either method. and thus the statute was invalid per se. NY tried to set minimum prices to be paid by NY milk dealers to NY milk producer. adequate methods are available. Minnesota v. Here. Statute was discriminatory b/c it was to make sure NY’s farmers could earn an adequate income. Law was enacted b/c PA and NY used NJ landfills to dispose waste. NJ operators and out of state users said it wasn’t fair. It cannot do this. if reasonable. In determining whether a statute violates the Commerce Clause it is immaterial if the statute is facially neutral if the effect is the same. there were good alternatives available. Clover Leave Creamery USSC sustained a state law which banned non-returnable milk containers made of plastic (but permitted non-returnable milk containers made of other substances. in practical effect excludes from distribution in Madison wholesale milk produced and pasteurized in IL.Downloaded From OutlineDepot. Balancing Test. Baldwin v. GAF NY tried to protect local economic interests at the expense of interstate commerce. NJ NJ had statute prohibiting importing of most solid or liquid waste into state. It also didn’t allow sale of milk that were from out of state milk producers if they had been purchased at a lower price. It imposed on out of state commercial a burden. The court said that the statute was no protectionist legislation camouflaged in a recitation of environmental purposes. Incidental burdens on interstate commerce may be unavoidable when a state legislates to safeguard the health and safety of its people. 62 . Madison plainly discriminated against interstate commerce.look at the burdens imposed by the statute and weigh the costs against the benefits. Madison could charge the actual and reasonable cost of inspection to the importing producers and processors. but states may not take themselves out of the stream of commerce if it means that other states will bear the burden of its isolationism. whereas pulpwood. States may not promote in-state interests at the expense of out of state interests.
o Held for Pl. Healy (1994) – statutory scheme here was to tax in state and out of state milk producers with a subsidy going back to the in-staters. It only apples where the effect of the state’s terms are limited to the particular market in which the state is participating. Even w/statutes that have a preemption provision. o Must still examine congressional intent even if preemption is express. the tax on the in-staters is offset by the subsidy so the in-staters are not being burdened. Express preemption.com Exxon Corp v. MD passed law that prohibited oil producers/refinres from operating gas stations in M b/c evidence that gas stations operated by producers/refiners got preferential treatment in the 1970s b/c of shortage.Downloaded From OutlineDepot. State argued that it was a market participant merely selling a commodity of its own. The court invalidated the statute because it was discriminatory – even though we have cases stating that an even handed tax is ok and a subsidy is ok. may prefer in-state sellers when government buys. The market participant exception doesn’t apply here. it preempts state and local legislation covering the same area. there 63 .statute contains a provision specifically referring to preemption and indicating which state laws the national statute supplants. A non-Alaskan firm w/no Alaska processing plants attacks the rule. the rule affected out of state companies exclusively. No burden either b/c statute might cause sales volume to shift from refiner-operated stations to independent dealers and CC protects interstate markets. chooses to deal w/in-staters rather than out-of-staters in direct transactions. Where this disproportionate impact is truly accidental and does not directly derive from the fact that the burdened firms are out of staters. Court said statute didn’t discriminate against out of state commerce b/c not all companies were affected by the state. So a government-owned entity may prefer in-state-buyers when government sells. Alaska is trying to engage in downstream regulation of the timber processing market (by trying to effect the conduct of the parties w/whom the state is not dealing directly). and the like. acting as a market participant. not interstate firms. Out of state company not involved in selling gasoline was not affected by statute. “Market Participant Exception” It applies only where state or local government. West Lynn Creamery v. the court will normally uphold the statute. State requires each buyer to promise that it will process the timber inside Alaska before it is exported. Since no gas is produced/refined in MD. MD (facially neutral statute) A statute that is evenhanded on its face may be disproportionately burdensome to some or all out of state businesses. If the government regulates in an area where it has authority. Preemption comes in under the supremacy clause. Limits to state regulatory power – Preemption Dormant commerce clause applies in the absence of preemption – where congress does not act in an area. o South Central Timber: Alaska sells timber from state-owned lands at below market prices. not the broader one.
compliance with both federal and state regulations is a physical impossibility or state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.Downloaded From OutlineDepot. o Field exemption. o i. so they sometimes create provisions saying that stats can come up w/its own regulations. Pacific Gas Implied Preemption-no text in the statute saying the state regulation is preempting. o Arg. Clear Water Act pollution permitting authority can be delegated from the EPA to state agencies.e. Start by asking what Congress is allowed to regulate. o Illustration: state v. federal speed limits: is there a conflict? o State max speed limit is 55 MPH o Federal max speed is 75 MPH o Arg. court is implying it. Identifying the Issue 1. for conflict: you can’t drive b/w 56-75 under state law. Conflict preemption. admiralty. o Fields traditionally left to states: subject area is viewed as “local” rather than “national” and usually involves health and safety regulations o Fields traditionally left to federal: foreign relations. bankruptcy.com will be litigation about whether the specific activity the state is regulating is preempted or not. you have a right under federal law to drive b/w 56-75 so there is a conflict. patent and trademark. o i. a) Is it Commerce? See if it fits into any of 3 categories: o Channels o Instrumentalities 64 . immigration. etc… o Congress is interested in preserving federalism values.here the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for States to supplement it. DD is when “Congress lies asleep”—Congress hasn’t acted/legislated on that particular thing.e. o Need to look at congressional intent (statutory goal): whether intent was to allow drivers to drive 75 MPH or whether the state was meant to give the states leeway and that 75 was just a cap for the states to have a limit on their own speed limit legislation. the state can regulate in that field after the federal agency approval. Preemption involves some sort of statute. for no conflict: state law is obedient to federal law. and upon approval by a federal agency that the state regulations meet minimum standards.
then states can’t regulate it b/c of the Supremacy Clause. Printz v. o This is similar to what the court did in Lopez (education is something that states rather than feds traditionally deal with). even if they are fairly ministerial an easy to perform.com o Activities that substantially affect interstate commerce (catch all) b) If the issue at hand doesn’t seem to fit into what Congress is allowed to regulate. not safety problems. v. Further. US Court held that Congress may not compel a state or local government’s executive branch to perform functions. The federal system of licensing and inspecting nuclear plants was set up solely to deal w/safety issues. The Act tried to do this w/several incentives. . Simultaneous compliance w/NRC’s rule and CA’s rule possible. such as the “take title” incentive. Court held that 10th amendment violated b/c Congress cannot “commandeer the legislative process of states by directly compelling them to enact and enforce a federal regulatory program.Waste disposal case that illustrates the principle that Congress may not simply force a state to enact a certain statute or to regulate in a certain manner. US (1997) .Congress enacted an Act that attempted to force states to make their own arrangements for disposing low-level radioactive waste generated in that state. thorough powers delegated to the Nuclear Regulatory Commission (NRC). and even if the compulsion is only temporary. NY v.Downloaded From OutlineDepot. Federal Regulation of States The 10th Amendment (powers not delegated to the feds are left to the states) occasionally limits Congress’ ability to use its commerce power o regulate the states. NY challenged this b/c local residents of each community objected to proposed disposal sites. so its statue doesn’t come within the area preempted by Congress. Congress passed a “Brady Bill” that required local law enforcement officials (which in actuality are executive-branch officers) to conduct background 65 . NRC’s action merely indicates that construction is to safe. whereby any state that didn’t arrange for disposal of the waste would be required to take title to the waste and would be liable for damages in connection w/the disposal of that waste. State Energy Comm. CA said that this statute was aimed at the economic problems of storing and disposing of waste. CA passed a law that said. . then think about the 10th amendment to see whether it’s something within the traditional state control.: Congress usually regulates the nuclear power industry. but it doesn’t address economic concern. The hard part is understanding how the Court determines that preemption exists in given situation! Pacific Gas & Electric Co. Preemption concerns arise when there is a federal statute regulatory scheme. there was no actual conflict b/w CA’s regusal to allow plants to be built until the nuclear waste issue was resolve and the NRC’s decision to grant licenses were remained. w/the construction and operation of nuclear plants. the plant must have adequate storage facilities and means of disposal. CA’s regulation was held valid.NY had to choose to regulate on its own by making arraignment for disposal of waste OR be forced to indemnify waste generators against tort claims. in order to construct any new nuclear plants. 2. which licenses and inspects all nuclear plants.
Dole (795The National Taxing and Spending Power QUESTIONS: DO WE NEED TO KNOW THE OLD DISTINCTION OF DIRECT/INDIRECT 3. If conditions are attached that means that an entity is in a position of power and could exert pressure and coercion. general welfare issue. 6. Court held that states have full sovereign immunity from any private suit in the state’s own courts seeking damages for the state’s violation of federal law. “Not the carrot but the stick”. Requirements before Congress can use spending power: a. If there are conditions they are to be plainly and unambiguously stated. 4. As long as Congress is raising money when it imposes a tax it will be found to be constitutional and it is almost impossible not to argue that an imposed tax is not being used to raise money. a sheriff.Downloaded From OutlineDepot. “the way the money is being spent and the conditions” d. c. Expenditure must be in pursuit of the general welfare to which the judgment of Congress will be deferred. Alden v. but it can be used to raise revenue. b. i. 5.whatever Congress can’t do under the Commerce Clause Congress can do under its Spending power. See Dole. Congress tried to abrogate state immunity under the commerce clause but the court said they can’t do this. Taxes can have a penalizing feature when it is incidental to the primary motive of collecting revenue. Regulation Through Spending. argued that Congress couldn’t force him to conduct background checks on the fed gov’ts behalf. i. until a national computerized system for doing these checks could be phased in. It cannot go as far as in the next case. Regulation Through Taxing a. Article I §8 – Congress shall have the power to lay and collect taxes.e. i. Taxing & Spending as a way for Congress to regulate – South Dakota v.e. Congress’ power cannot be used to induce the states to engage in unconstitutional acts. Printz.com checks on prospective purchases. 1. “you have to do ___________ to get the money”. Tax cannot be punitive in nature.funds were going to build highways-safe interstate travel in exchange for raising the legal age in which to buy alcohol b. States are independent and autonomous within their proper sphere of authority. No other expressed constitutional prohibitions or violations (other than federalism) cannot require that the State violate the 66 . Maine States were employers and were charged with violating federal law. This case tells us how free the court is w/the plain language of 11th amendment. Congress and entice or reward States but not coerce.e. Some relationship between the object of funding and conditions. c.
Facial: If P attacks a classification that is clearly written into the statute or regulation. but is being administered in a purposefully discriminatory way. but the federal government is also bound by the same rules of equal protection. wealth. Congress must state unambiguously the conditions it imposes on states that accept federal funds. he is saying that the statute or regulation violates equal protection “on its face.Basically.” IV.Downloaded From OutlineDepot. South Dakota v. or any other circumstance. 1. III. alienage. Loving v. Rationale: The condition is directly related to one of the main purposes of highway funds: safe interstate travel. The text of the Clause applies only to state governments. illegitimacy. The Equal Protection Clause (and the 5th Amendment’s Due Process Clause) applies only to government action.” Will be better if case involves both (i. Conditions placed on federal grants are not regulation of states’ affairs. it could generate either types of scrutiny. Offer benefits are not unusual and states can refuse if they find it coercive. Congress’s power may not be used to induce the states to engage in unconstitutional acts. This is the requirement of “state action.” 3. The law was valid as applied to P’s 19 year old limit on some beer. As applied: if P’s claim is that he statute/regulation does not make a classification on its face. the court has held that Congress may place conditions on grants. There are two types of attacks: 1.com Constitution. The kids from other states were going to SD to drink. Dole (1987) Facts: A federal law required that 5% of allocable highway funds be withheld from any state where persons under 21 could legally purchase or possess alcohol. Strict Scrutiny: court uses this for any statute that is base on a “suspect classification” I. not to action by private citizens. Equal Protection – A Guarantee of Rationality in Equality Equal protection is part of the fourteenth Amendment and it provides that “no state shall make or enforce any law which shall deny any person within its jurisdiction equal protection of the laws. so long as the conditions are expressly stated and have some relationship to the purpose of the spending program. Equal Protection Analysis: • Is there classification? • What is the nature of the class? Is there evidence towards animosity towards one particular group? Is there something about the class that elicit illegitimate motives/purposes? • Depending on the nature of the class. VA: statute that denied interracial marriage—so the statute infringes on both!) 67 . II.” 2. It imposes a general restraint on the governmental use of classification based on race but also based on sex. then he is claiming that the statute/regulation is violation of EP “as applied.e. or that impairs a “fundamental right. Congress can act under the spending power to encourage uniformity in age. The 5th Amendment’s Due Process is interpreted to bar the federal government from making any classification that would be a violation of the Equal Protection Clause if done by a state.
Almost every classification survives this easy review. Source of Equal protection clause is the 14th amendment – applies only to the states. and ethnicity. Federal government is under the 5th amendment due process clause. 3. are strictly scrutinized just the same as those that purposely disadvantage minorities. c) d) e) f) g) h) Board and Plessy v. Ferguson) OR Is statute facially neutral? De facto? Implicit Bias? Government needs a compelling interest And it has to be necessary. Subject to rational basis test and presumption of constitutionality. a) Classification based on sex/gender (encompasses to the extent that sex is biologically determined). 1. 2. with certain types of distinctions. the maintenance of physical separation b/w races or national origin. It must be narrowly tailored and that there are no alternatives. Equal Protection Overview: A. court will NOT use SS. Sharpe – equal protection as a principle is a component of due process. Early equal protection cases dealt with economic issues. Due process of laws includes equal treatment.e. It is used for semi-suspect classification.com a) Suspect classes are race. 2. i. is the statute facially discriminatory? De jure? Explicit Bias? OR c) Is statute facially neutral? Implicit Bias? d) State must show that it has an important objective and that the scheme/difference in treatment is substantially related to that objective. those based on gender and illegitimacy. is the statute facially discriminatory? De jure? Explicit Bias? (Brown v. But. The means chosen by legislature must be substantially related to an important governmental objective. Race-Conscious Affirmative Action: gov’t programs that attempt to assist racial or ethnic minorities and do so in an explicitly race-or ethnically conscious way.Downloaded From OutlineDepot. • All laws discriminate by making classes of people. Ordinary mere rationality review: applies to all classifications that are not based on a V. o Almost every economic and tax classification is reviewed under this standard. Intermediate Scrutiny: less demanding than strict scrutiny. Bolling v. Usually use SS when there is segregation. (similar to SS—tough to pass) e) The same standard of review is used when the sex based classification is benign (intended to help women. b) If suspect. b) If semi-suspect. a closer judicial scrutiny is necessary because we cannot trust the legislative judgment to be 68 . or been intended to redress pass discrimination against them). If the government enacts a statute or regulation that has the unintended incidental effect of burdening. The differential treatment MUST be intentional on the part of the government. The classification will be upheld so long as it is conceivable that the classification bears a rational relationship to a legitimate governmental objective. non marital children. suspect or semi suspect classification and do not impair a fundamental right. color. national origin.
in order to withstand equal protection review such classifications must be rationally related to a legitimate governmental purpose. 3. fair. Are the mentally retarded deserving of protection under Equal Protection? Classifications involving the mentally retarded are not entitles to a high level of scrutiny. What level of scrutiny is applied? a. etc.Downloaded From OutlineDepot. Intermediate scrutiny for gender and illegitimacy. City of Cleburn v. alienage b. Is it (depending on the level): a) Legitimate b) Important c) Compelling? 4. Purpose served by the statute? Negative attitude-patients harassed.) Equal Protection Analysis: 1. Strict scrutiny for race. This goes to the likelihood that the classification reflects prejudice. Permit was denied. democratic political process? 8.com B. History of discrimination against the group. national origin. Steps to go about determining this: 2. Ability of the group to protect itself in the political process? 7. but specifically disallowed group homes for the retarded. Cleburne zoning ordinance permitted a number of different types of structures to be build. safety of patients They applied the mere rationality standard. Rational basis for everything else like age. (the classes of people that they are making. What is the government interest? 3. does the distinction the government is drawing either: a) Reasonably (rational basis) b) Substantially (intermediate) or c) Necessarily (strict) promote the government interest? b. Does the classification satisfy the required level of scrutiny? a. Is the distinction the result of a fair. Reasons to apply heightened scrutiny: 5. There was demonstrable animus exhibited toward the mentally retarded. Is this an immutable characteristic (unchangeable by will)? 6. Cleburn Living Center Facts Cleburn Living Center purchased an old building to develop group home for the mentally retarded. What is the classification/distinction that the legislature is drawing? 2. wealth. What is the class here? Mentally retarded. c. Therefore the Court is willing to set rational basis scrutiny aside in 69 Issue: Rule: Holding .
The Compromise dealt with admission of new states divided between slave states and free states. States have a legitimate interest in giving special treatment of the mentally retarded b/c of their reduced ability to cope w/and function in the everyday world. Court refused to treat mental retardation as an explicitly quasi-suspect classification like gender/illegitimacy. Spirit of the Civil war amendments was to secure to blacks enjoyment of all civil rights enjoyed by whites.first case to apply strict scrutiny to race. and the infirm. Dred Scott v. b. but property. 70 .com favor of heightened scrutiny. Article IV § 2 – requires states to return escaped slaves. there would be no principled way to deny the same status to other groups such as aging. Slaves were counted for taxation and representation purposes as 3/5 of a person. Korematsu v. US (1944) . The gov’ts responses to the plight of mentally retarded show that there is no continuing antipathy or prejudice on the part of lawmakers. 1. Article I § 2 – the 3/5 clause. Right to exemption from discriminatory legislation is in the amendments. Court held that a slave could not invoke diversity jurisdiction because blacks had no rights under the Constitution – they were not citizens. 2. If quasi suspect status were given to the large and amorphous class of the metnally retarded. 3.Downloaded From OutlineDepot. Sanford (1857) • • Stauder v. d. Equal Protection – Race (824-854). WV (1880) Facts: Holding: Rationale: • declared the MO Compromise unconstitutional as interfering with property rights under the 5th amendment. Court invalidated the conviction because of the discriminatory law. disabled. Framers were participators in and protectors of slavery. first substantive due process case the 14th amendment was motivated by this case and things like black codes. a. State murder conviction of an African American was challenged because a statute forbade blacks from serving on juries. Article V – protected the amending of these articles. Article I § 9 – prohibition on government from banning importation of slavery until 1808. c. Race 1.
legal restrictions on rights of a racial group are subject to the most rigid scrutiny. 2) purpose is to promote equality before the law. Plessy v. State does not have to abolish all color-based distinctions. 13th: this freed the slaves. 3) purpose is not to promote co-mingling. not treating them unequally. Here. Based on gravest imminent danger to the public. not racial antagonism. but the court’s sanction of it will last forever as precedent. Public necessity is a basis for this law.com Facts: P. Has been interpreted to prohibit conditions related to having been a slave or a descendant of one. This is an issue of association. A military order only lasts during wartime. was convicted for remaining in a military area contrary to an order that all Japanese people should be excluded from that area. The war making branches of government found the law to be a proper and adequate measure to guard the national defense. A military judgment based on racial considerations should not be given the usual great weight. Jackson Dissent: should not question the accuracy of the order because it is unconstitutional. The law is in place to protect civil rights. is not related to slavery. this was only separating people. The Court took a very Holding: Rationale: Harlan dissent: 71 . The thin disguise of equal accommodation is not sufficient. The fundamental objective is that it interferes with personal freedoms. Involves two claims: under the 13th amendment and under the fourteenth amendment. This is shown with things like separate schools and interracial marriage bans. Every exercise of police power must be reasonable and extend only to laws for the promotion of public good. This. 14th: involves: 1) a reasonable action for public good is valid under the state’s use of police power. an American citizen of Japanese descent.Downloaded From OutlineDepot. Holding: Rationale: Rule: Murphy Dissent: the measure must be based on an assumption that all people of this ancestry have tendency for sabotage. this law was in the war power. not oppression. In times of direst national emergency. This law does not conflict with the 13th amendment or 14th amendment. according to the court. groups of citizens may undergo restrictions for the public welfare. P was arrested in refusing to vacate a seat for whites. Findings of the legislature showed the many disloyal Japanese people. Ferguson (1896) Facts: LA law required that RR passenger cars have separate but equal accommodations for white and colored passengers. Origin of statute was to exclude blacks.
” So. The “all deliberate speed test. Because the schools are equal in facilities.people or jobs that do not pose a safety risk i. but segregated. Wright. the court may grant extra time. which are irreversible. relief was not 72 . but to present conditions. Segregation creates a stigmatic injury. In education. alcoholics. Stressed the fundamental importance of education. Don’t look to history.Downloaded From OutlineDepot. must be made available on equal terms.e. ex-offenders (see NYTA v. diabetic. and the remedy was mandated integration “with all deliberate speed. One of the goals of Reconstruction was to implement public education. methadone users who sweep courts must require Ds to make showing of prompt and reasonable start toward compliance. the court looked to the effect of segregation itself on public education. but it was easier and safer to keep the schools segregated by the 1950spublic schools were well established. fashioned a remedy. Issue: Is the separate but equal doctrine unconstitutional by depriving P’s of equal protection? Holding: Rationale: Yes. It was left to school authorities to implement those solutions. where the court acknowledged the stigmatic injury but the Brown court determined that the children were an identifiable group. see Allen v. Brown v. To separate the black children gives them feelings of inferiority.e. De facto segregation: comes about by forces other than a statute and was developed as a result of voluntary decisions. • • • Manner of Relief: Brown 1 statute was facially discriminatory. Bd of Education (1954) Facts: Blacks sought admission to schools on a non-segregated basis. separate but equal has no place. Brown II. The opinion of the Brown court thought that education was vital to the development of the nation and to participatory democracy. once there has been such a showing. It is important to look to history but is more important to look to the plain language of the amendment for current analysis. while Brown II was facially neutral.com narrow view of Equal Protection during this period. i. Beazer) Overinclusive. Underinclusive-a statute that has not included some groups who may pose a real risk. Separate schools are inherently unequal.” Full implementation of the principles of Brown I may require varied local solutions.
De jure – law neutral on its face discriminates in effect. moved back to VA. Clear purpose of the 14th was to eliminate all official state sources of racial discrimination. There is none here. With de jure discrimination. Must be shown to be necessary to the accomplishment of some permissible state objective. a black woman and a white man were married in DC. even if the participants are punished equally. Discriminatory purpose shown by circumstantial evidence: neutral on its face and is applied in accordance w/the terms. Strauder) 2. De Facto Discrimination. this is white supremacy because only whites are punished. but administered in discriminatory way. and were arrested under the state statute prohibiting interracial marriage. Loving v. Three ways to show purpose: 1. De Jure v. it is violative of EP.com granted to the parties to the case. It is not enough under the 14th that all races are punished the same. Yick Wo v. Applied strict scrutiny. court will not require that it be shown to have had actual discriminatory impact in the case at hand. (i. (NEED INTENT AND IMPACT b/c impact alone isn’t enough). (i.Downloaded From OutlineDepot. Burdens one class differently. violates the equal protection clause. Discrimination in administration: law neutral on its face. Facially discriminatory: law discriminates on its face. Was the VA scheme of preventing marriage between people solely on the basis of race a violation of the 14th amendment? Yes. but was enacted w/a purpose of discriminating. VA (1967)-Race specific classifications that are facially neutral Facts: Ps. Where a law is facially discriminatory. Equal Application: Where a statute makes otherwise acceptable behavior criminal only because the participants are of different races.e. Looking at circumstantial evidence allows us to draw inference of intentional 73 . you do not immediately go into a strict scrutiny analysis. Alleged state interest was to preserve racial integrity. Hopkins) 3. Protecting “racial superiority” was not a legitimate interest and will not be upheld.e. The mere fact that a law has a less favorable impact on a minority group than it has on the majority is not sufficient to constitute a violation of equal protection. Issue: Holding: Rationale: Equal Protection and the requirement that racial discrimination be intentional A classification will not be deemed to be suspect and subject to SS unless the court finds that there was legislative intent to discriminate against the disfavored group.
including that the law bears heavily on one race. Burden shifts to government to rebut by showing a non-discriminatory purpose. Designed to test verbal ability. 74 . This was determined to be facially discriminatory. Hopkins (1886) Facts: Ordinance made it a crime to operate a laundry in a building not made of stone or brick. vocabulary. have a high school diploma. The test is neutral on its face and serves a legitimate government purpose. Yick-Wo v. Amounts to a practical denial of equal protection. 320 laundries were in the city – 240 were Chinese owned. Must show a discriminatory effect. This was a prima facie case of discriminatory purpose in neutral statute. See Gomillion. a statute is not unconstitutional solely because of a disproportionate impact. The test was used throughout the federal government. and receive a certain grade on a test developed by the civil service commission. Civil Rights case involving gerrymandering to exclude almost all black voters from city limits. 310 were wooden.Downloaded From OutlineDepot. • Once it is determined that strict scrutiny does not apply. character standards.com discrimination. rational basis. A discriminatory purpose may be inferred from totality of facts. Was the test discriminatorily slanted toward whites? Holding: Issue: Holding: No. Davis (1976) Facts: Test for police recruits had to satisfy certain physical. Also. the test does not prevent the government from upgrading the standards of its employees. No non-Chinese were arrested in violation. But. P was a Chinese man who was denied a license. reading comprehension. Disparate impact alone does not invoke strict scrutiny. As applied. Four times as many blacks failed. The manner of administration determined that the statute was racially discriminatory and called for strict scrutiny. no discriminatory purpose was found. Whatever was the ordinance’s intent. the court has not held a neutral law that serves ends within the power of the government to pursue is invalid under the equal protection clause simply because it affects one race more than another. it was discriminatory as applied. Washington v. Rationale: The essential element between de jure and de facto discrimination is purpose or intent to segregate. goes to the next level of analysis. No compelling reason for the discrimination was shown. Statistical evidence was so overwhelming that it suggested a discriminatory intent.
so a prima facie case was not presented. He filed Blk. • Legal history • Sequence of events leading up to the decision. Corp. Making it harder to get multi-family rezoning Legislative reports. minutes. especially if it shows a series of questionable official action. (1977) Facts: Holding: Rationale: An area was already zoned for residential single-family housing. Appellate court found the study valid but insufficient as to the evidence provided that demonstrated intent in the administration. Burden then shifts to D—who only has to show that it would’ve passed the state even w/o intent to discriminate. Court elaborated on how to determine discriminatory intent or purpose. could have been statements made at a meeting. The state argued that the statute was facially neutral. Arlington Heights v. Impact alone was insufficient. was convicted in a GA. McClesky v. District Ct.com • Does not end the inquiry if strict scrutiny is not warranted.This case really establishes discriminatory purpose as a basis for de jure discrimination cases. Def. found the study flawed and dismissed Def’s writ. provided the court with a study that statistically found that blacks that killed whites were 43 times more likely to receive the death penalty.Downloaded From OutlineDepot. 75 . • Departure from procedure or substance (ex: normal factors not taken into account) The Court held that there was a high need for direct proof. This was not unconstitutional discrimination. zoning is strongly in the police power. Court for murdering a white man and sentenced Writ of habeas Corpus alleging that Georgia’s capital punishment scheme was (1) administered in a manner that was personally discriminatory and (2) discriminated against non-whites. Most legislators don’t say that their reasons are discriminatory): Evidentiary sources to reveal official actions: • Historical background. Tried to rezone for a multiple family housing. which would be integrated. Court said that P has the burden of showing that D had an intent to discriminate was a motivating or substantial factor in the legislature’s enactment decision. Metropolitan Housing Dev. Also. Def. Kemp Facts: to die. None of the these existed here. Administrative history: Facts here that would have suggested discriminatory intent: • • • o o o changing zoning to single family to avoid the integrated housing.
Downloaded From OutlineDepot.com Issue: Rule: Holding: Can a facially neutral death penalty law be struck down simply because one race is being put to death more often than another. o Ct. o Strict scrutiny will apply because states have a compelling interest in remedying previous discrimination Shaw v. shows that the district is bizarrely shaped. o Shaw was a standing case but the Court held that Plt had suffered no injury. • McClesky stands for the proposition that the Equal Protection clause prohibits the government from engaging in actions deliberately undertaken to injure racial minorities The Court told McClesky that he needs evidence of individual statistics-which imposes a much larger burden on the Def. that alleges an equal protection violation has the burden of proving the existence of purposeful individual discrimination. The Court upheld GA’s capital punishment statute and scheme. • MISC. Held that Plts cannot demonstrate voter dilution by challenging redistricting. only individuals living within the district had suffered an injury. NOTES ON RACE DISCRIMINATION: • Miller v. The Constitution does not require that a State eliminate any disparity with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. A def. Johnson: redistricting matter in Georgia. No. Johnson appealed contending that under Shaw v. applied SS test if Ps could show that districting scheme was so irrational on its face that it can only be understood as an effort to segregate voters b/c of their race. When these laws have a discriminatory intent. Reno: state redistricting plan that created new majority minority districts. The Equal Protection Clause stands for protection of individual rights in the context of race. they are unconstitutional. • Equal Protection – Race Conscious Benign Measures 76 . must prove that those making the decision in his case acted with purposeful purpose. Facially Neutral Race Based Classifications: o Some laws that discriminate against a particular race are facially neutral in that a look at the text of the law will give a reader no hint of discrimination. Def. Reno deliberate race based voter classification (gerrymandering) is not illegal unless the Plt. struck down the plan. The Plt’s burden is to show that race was the predominant factor motivating the legislation. District Ct. .
the Equal Protection protects personal rights. Individual can’t take a direct hit. In such cases. No burdens on 3rd parties. Strict scrutiny must be applied to “smoke out” illegitimate use of race. The Richmond plan was facially discriminatory because it denied certain citizens the opportunity to compete for a fixed percentage of public contracts based solely on race. Remedial classification: a classification that favors one group over another in an attempt to make up for past discrimination or ill treatment. o Classification based on race carry a danger of stigmatic harm. State remedial action must be in accordance with the 14th Amendment. can you go with the next bid or next best bid? This case shows discrimination against any racial group will merit SS even if that group has never been the subject of widespread discrimination. Is there a waiver out of the plan? What if you can’t find a minority diverse workforce. Why race-conscious plans subject to SS: o No easy way to tell which racial classifications are truly benign or remedial or which ones are ostensibly benign. Plan has to be flexible with no rigid numbers or quotas. The group benefitted by the AA program might in the long run be harmed b/c society will believe that the favored group is less competent and can’t succeed w/o special protection. Benign classification: a classification scheme that favors one group over another but with harmless and non-biased intention.Downloaded From OutlineDepot.com AFFIRMATIVE ACTION/SET ASIDES City of Richmond v. Rule: Holding: • • • 77 . Check if there are race neutral alternatives available. (City as Gov’t actor=classic 14th Amendment case where the 14th speaks to states) State must prove a compelling interest re: remedying specific discrimination. P was a white owned prime K-er who was unable to find an MBE who could supply 30% of the work at acceptable cost. States and their political subdivisions are not free to decide which remedies are appropriate. Croson (1989) Facts: Suite regarding the constitutionality of a set aside program requiring prime contractors on city projects to subcontract a certain percentage of the contract to a minority business (MBE). • • • • State must have a compelling interest Must be narrowly tailored to avoid being over inclusive or under inclusive.
The school engages in a highly individualized. holistic view of each applicant’s while considering all the various qualifications. Notes: Grutter v. Bollinger Facts: Univ. Small white owned firms could also qualify as minority. society will never achieve our goal of becoming truly race neutral. which is the attainment of a diverse student body.Downloaded From OutlineDepot. Pena (1995) Facts: P was a white owned sub-Ker that placed a lower bid for a project. P got denied and said that use of race was a predominant deciding factor and the use was a denial of her equal protection. but the K-er picked a minority owned sub-ker b/c of a federal regulation that gave financial incentive to those who rewarded projects to minority owned sub-kers. This is sufficient as to qualify as narrowly tailored. Tailored: Alternatives: 78 . (promotion of cross racial understanding. Michigan Law wanted to increase diversity by adding race into the mix during the admissions process. This means that reverse discrimination may be upheld only if necessary to achieve a compelling governmental interest and must be done in a narrowly tailored way. promotion of livelier and more enlightening class room discussion from student’s w/different backgrounds). which is a program in which a fixed number or proportion of opportunities are reserved exclusively for certain groups. Court applied SS and said that the method was sufficiently narrowly tailored to achieve its compelling interest. One of the soft variable was the extent to which the applicant’s presence would contribute to diversity of the school. Are there other race neutral alternatives for achieving diversity? The ones proposed were non workable ones. Interest: N. Court held that congressionally authorized race conscious affirmative action programs must be subject to SS. Student body diversity is a compelling interest that can justify the use of race in university admission. School didn’t use a quota system. C. And set aside must be: o Industry specific o Market specific o Race specific o Adarand v. but a firm owned by AA and other minorities were automatically presumed to disadvantaged.com • Unless subject to SS. break down of racial stereotypes. Small white firms had to prove disadvantage by clear and convincing evidence.
Aiello. nothing else (non-marital) Deriving citizenship from father has to have this plus show support for the child and need order of legitimating (paternity) (non-marital) The case was about this advantage for women and a disadvantage to fathers (both nonmarital) The statute wants to show a biological tie (but why different requirements?) Because with a BC you know that the child came out of that woman…not the case for the father (real difference) If it were only about blood tie then the dissent might suggest DNA test. the majority says that they also want a familiarity with American culture (from the father or parent.com Equality w/ Sex and Gender VMI Case: Look up the VMI case…any type of discrimination has to be based of off “real difference. not a disadvantage Also. Virginia and Nquyen v. however. Superior Court 79 . v.Downloaded From OutlineDepot. Michael M. not just blood) Also. not a true difference… take girls home. Case: Statutory rape statute that only applied to men… Interest in protecting women and they have a natural deterrent because they can get pregnant What did the Court say…? Selective Service Case: Men have to register and women don’t… Court says that this regards war so Congress has a little more leeway…there is a potential to go to war for everyone who registers to go to combat…if the goal is combat readiness and you don’t want to let women go then this statute is valid… There is a lot of dissent saying we should rethink combat exclusion or also they could still sign up and do non-combat jobs Equal Protection and Gender – United States v. more likely to arrest men… Michael M. father can just walk away really Medina thinks this is a missed opportunity to create a fair approach…says they should have the same requirements for both… Beer Case: Statute where girls could buy earlier than men. Immigration and Naturalization Service (1095-1110 and supplementary materials). mom pretty much has to stay with child. Geduldig v. for highway safety purposes because it was shown that men drive drunk more The Court says that this is not a “real difference” and this is a stereotype. more of an advantage to women. Boren.” not “overbroad and archaic stereotypes” Have to prove that it is for a real purpose…(this case was not about real differences) Intermediate scrutiny Nguyen Case: The court held that this was discrimination based off of a “real difference” Deriving citizenship from mother only birth and birth certificate are required. Equal Protection and Gender – Craig v. the numbers of boys in lockup and dui are reflective of stereotypes in society.
Downloaded From OutlineDepot.com of Sonoma County. Rotsker v. Feeney (10881095). Sims. Quill (1157-1189). Goldberg (1044-1088). Equal Protection and Fundamental Rights – San Antonio Independent School District v. Doe. Equal Protection – Alienage (1112-1121 and supplementary materials) Equal Protection and Fundamental Rights – Reynolds v. Bush v. 80 . Gore (11321157). Plyler v. Rodrigues. Equal Protection and Gender – Personnel Administrator of Massachusetts v. Vaccco v.