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1. Federal Judicial Power- authority of federal courts 11th will prohibit a federal court from hearing a claim for damages against a state government (though not against state officers) unless: (1) state has consented to allow the lawsuit in federal court; (2) Plaintiff is the US or another state; (3) Congress has clearly granted federal courts the authority to hear a specific type of damage action under the 14th (i.e., under a civil rights statute) a. Authority for judicial review i. Marbury v. Madison=- authority for federal judicial review of federal legislative and executive actions; federal courts have the power; Marshall: “province and duty of the judicial department to say what the law is” ii. Martin v. Hunters Lessee- authority of Supreme Court to review State court decision b. What is barred? i. Actions against state governments for damages; ii. Actions against state governments for injunctive or declaratory relief where the state is named as a party iii. Actions against state governments iv. Where the effect of the suit will be that retroactive damages will be paid from the state treasure or where the action is the functional equivalent of a quiet title action that would divest the state of ownership of land; and v. Actions against state governments for violating state law c. Barred by the doctrine of sovereign immunity i. Suits against a state government in state court, even on federal claim without the D state’s consent Alden v. Maine (1999) provision in federal Fair Labor Standards Act creating a private cause o action in state courts against state employers who vilate the Act violates sovereign immunity ii. Adjudicative actions against states and state agencies before federal admin agencies (Federal Maritime Comm’n v. South Carolina State Ports Authority (2002)) d. Requirement for cases and controversies- limits = justice ability doctrines, (4) and all must be met for any federal court i. Standing- Supreme Court said that standing is the most justice ability requirement; whether the P is the proper party to bring a matter to the court for adjudication; in order for a P to have standing, (4) requirements 1. Injury- P must allege and prove injury, or will be imminently injured a. P may assert only personally suffered injuries; illustrated by Sierra Club v. Morton
b. P seeking injunctive or declaratory relief must show a likelihood of future harm, City of L.A. v. Lyons 2. Causation and Redressibility- P must allege and prove the D caused the injury so that a favorable court decision is likely to remedy the injury; Supreme Court frequently said that core of Art. III is a prohibition of federal courts issuing advisory opinions (impermissible advisory opinion) 3. No 3rd Party standing is allowed- P cannot present claims of others; P must meet all other standing requirements and one of these exceptions must be present a. Exceptions: 3rd party standing is allowed if a close relationship exists between P and injured 3rd party b. 3rd party standing allowed if injured 3rd party is unlikely to assert his own rights c. No generalized grievances are allowed- refers to a particular type of claim; the P must not be suing solely as a citizen or as a taxpayer interested that the government follow the law; provision of Art. I “Congress must give a regular statement and account of all expenditures” ; may challenge government expenditures as violating the Establishment clause; only to challenged expenditures to specific provisions ii. Ripeness- “may the federal court grant pre-enforcement review of a statute or regulation?” 1. The hardship that the P will suffer without pre-enforcement review; the greater the hardship, the more willing the court will be to hear the case 2. the fitness of the issues in the record for judicial reviewdoes the federal court have before it all that it needs to effectively decide the case? iii. Mootness- if events after the filing of the lawsuit end the P’s injury, the case is moot; P must present a live controversy in all states of federal court proceeding; if anything happens to end the occurrence 1. Exceptions: wrongs capable of repetition but evading review (chance that it could happen to that P again); Roe v. Wade 2. voluntary cessation- if the D voluntarily halts the offending practice but is free to resume it at any time, it wont be dismissed as moot, i.e., a racially discriminatory hiring test 3. class action suits- if the named P’s claim becomes moot; not dismissed so long as there’s one member of the class with an ongoing injury
cl. What is the best source of power for a particular act of Congress? The Necessary & Proper Clause . Congresses’ authority to act i. it merely gives Congress power to execute specifically granted powers 2. also says Congress can raise an army and a navy 1. Congress doesn’t have a police power a. Indian rez) pursuant to the property power ii.P was federal DC judge who was impeached by H of R. authority to do anything not prohibited by the Constitution. the validity of a federal statute cant rely on “the police power.authority of Congress a. borrow money. Challenges to Partisan Jury Mandering. Challenges to the impeachment and removal process (1993 SC case Nixon v. Maryland (Congress has the power to charter banks since that power is appropriate to executing Congress’s enumerated power to tax. Art.State and local governments have a police power. Necessary & Proper Clause Art. Cases under the Republican form of government clause. few areas where the SC has said that matters are non-justiciable questions: 1. IV. Federal Legislative power. Challenges to the President’s conduct of foreign policy 3.” however. P fought method) 4. Congress may choose any means not prohibited by Constitution to carry out its powers. §8. Congress can exercise police power-type powers as to the District of Columbia pursuant to its power to legislate over the capital (Art. no general federal police power. military bases.political party that controls the legislature draws election districts to maximize seats to that party (2004 and 2006 SC cases) 2. 17) and over all US possessions (territories.allegations of Constitutional violations that the federal courts will not adjudicate. I.iv. § 8. US. Political Question Doctrine. The N & P clause is not itself a basis of power. § 4 “US shall guarantee to each State a republican form of government” 2. grants Congress the power to make all laws necessary and proper for carrying into execution any power granted to any branch of the federal government. Congress may act only if there is express or implied authority 1. Senate formed committee to evidence against P and made recommendations to whole body as to whether he should be removed from office. regulate commerce). McCullough v. I.
Taxing. Ogden: fed statute barring possession of a gun in a school zone is invalid. but vast majority comes under 2 1. Bill of Rights still applies to this power (i. Spending.Art. the federal government could not condition welfare payments on an agreement not to criticize government policies) 2. and Commerce Clause powers. internet) i. although broad. not merely the accomplishment of other enumerated powers.iii.Art. a federal law must either: a. I. § 8 enumerates a large # of Congress’ power. § 8. Congress may regulate channels of interstate commerce (highway. and among the States”. tit cannot be regulated under the CC unless Congress can factually show a substantial economic effect on interstate commerce :Gibbons v. from 1937-1995 SC broadly interpreted scope of Commerce power. If question involves a state regulation that affects the free flow in interstate commerce: (1) see if the question refers to any federal legislation that might be held either to: a) supersede the state regulation or preempt the field. ask if the state legislation either discriminates against interstate or out-of-state commerce or places an undue burden on the free flow of interstate commerce. or b) authorize state regulation otherwise impermissible. does have limits so as not to obliterate the distinction between what is national and what is local.. spending may be for any public purpose. I. Supreme Court recently made clear that the power of Congress to regulate commerce. can create any tax to raise revenue. Congress may tax and spend for the general welfare. Indian tribes. Lopez if the regulated intrastate activity is noncommercial and noneconomic.e. if legislation = discriminatory. “Congress can regulate commerce with foreign nations. Commerce Clause. waterway. (2) if neither of these possibilities. it will be invalid unless a) it furthers an important state interest and there are no reasonable nondiscriminatory . so nothing was declared unconstitutional as exceeding it until US v. Marshall defined commerce as “every species of commercial intercourse…which concerns more states than one” and included within the concept virtually every form of activity involving or affecting 2+ states 3. to be within Congress’s power under the CC.
Congress may regulate instrumentalities of interstate commerce and person/things in interstate commerce. phones. Morrison. Filburn: Congress can control a farmer’s production of wheat for home consumption. this wont violate 10th merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program . cumulative effect of many instances of such production could be felt on the supply and demand of the interstate commodity market. if the legislation doesn’t discriminate but burdens interstate commerce. i. planes.alternatives. Court will uphold the regulation if it is of economic or commercial activity and the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce Gonzalez v. Ogden c. substantial effect has a cumulative impact only when Congress is regulating economic activities (US v. Intrastate Activity. 10 . Wickard v. a principle officer who must be appointed consistent with the appointments clause? Nothing that violates separation of powerspg 195 (provisions of Violence Against Women act) th iv. internet).federal civil remedy for victims of gender-motivated violence is invalid. Question: what kind of an officer of government is an independent counsel. key principle: Congress can’t compel state legislative or regulatory activity. it will be invalid if the burden on commerce outweighs the state’s interest b. things that facilitate commerce (trucks.when Congress attempts to regulate intrastate activity. Raich (2005): upholding regulation of intrastate cultivation and use of marijuana bc it was part of a comprehensive federal program to combat interstate traffic in illicit drugs. or b) the state is a market participant.all powers not prohibited to States are reserved to States and people. Congress may regulate activities that have a substantial effect on interstate commerce. Gibbons v. Congress can regulate states through the spending power by imposing explicit conditions on the grant of $$ to state/local governments.
White’s Dissent: the LV is well-established. legislative vetoes are always unconstitutional 1. INS decisions to suspend deportations had to be submitted to Congress. legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism or presentment. South Dakota v. LV usually arises where Congress delegates discretionary power to the President or an executive agency. Chadha (1983) Court noted that the LV violates the implied separation of powers requirements of the Constitution. and this is once instance where that happens 2. there must always be bicameralism (passage by both House and Senate) and presentment (giving the bill to the President to sign in its entirety: either sign whole bill or veto whole bill). Dole any state receiving federal highway money has to set 21 drinking age.1. Congress granted to INS the power to deport or suspend from deportation illegal aliens. US Striking portions of a federal gun law that required state law enforcement officers to collect from gun dealers reports regarding prospective handgun purchasers and to conduct background checks on them v. such laws must be narrowly tailored in the words of the Court. in an attempt to control the delegation. No limit exists on Congress’ ability to delegate legislative powers ii. either house could pass a resolution overriding the decision. a federal law that would withhold 5% of the federal highway funds otherwise allocable to a state if the state didn’t set a 21-years min. framers intended for government to be flexible and adapt. Delegation of Powers i. this LV provision = unconstitutional. Legislative vetoes (“LV”) and line item vetoes are unconstitutional. Supreme Court held that 10th prohibits Congress from adopting a statute that “commandeers” state officials by requiring states to regulate their own citizens Printz v. SC has said that Congress cannot create new rights or expand scope of rights all it can do is act to prevent/remedy violation of rights already recognized by the courts. this is how Congress ensures accountability of agency. Congress requires the President or agency to present any action taken under the discretionary power to certain members of Congress for .for Congress to act. separation of powers isn’t the point. in proportion and congruent to remedying proven Constitutional violations City of Boerne v. Congress’ power under §5 of 14th. drinking age for alcohol has been upheld 2. legislative vetos of executive actions are invalid (INS v. Flores b. which authorizes Congress to enforce the 14th.
II specifies powers of president and executive branch a.approval. Clinton v. Texas (2008): President had no power to enforce provisions of the Vienna Convention by issuing a memo requiring states to . the power must not be uniquely confined to Congress (i. Treaties. the power to declare war or power to impeach cannot be delegated) 3. Line item veto power allows President only to approve or reject a be in toto. Treaties are invalid if they conflict with the Constitution (which is the supreme law of the land) 4. if a treaty isn’t self-executing. To be delegable. its not treated as the supreme law of the land until Congress acts to effectuate it. the veto must be approved by both house and presented to the President 3. they veto the action and that is the final decision = unconstitutional because. Non-Self-Executing Treaties: some treaties are expressly or impliedly self-executing (effective without any implementation by Congress). he cant cancel part and approve other parts. President generally doesn’t have any independent power to issue a “memorandum” ordering compliance with a non-self-executing treaty that hasn’t been the subject of effectuating legislation by Congress (Youngstown)why do whereas clauses matter? .agreements between US and foreign countries negotiated by the President and are effective when ratified by Senate 1. but the treaty itself can serve as an independent basis for Congress’s power to adopt the required legislation a. if they disapprove.Art. Foreign Policy i. City of NY (1998) Prez’s veto power doesn’t authorize him to amend or repeal laws passed by Congress iii. cant give the executive power to enforce the law or implement the law (that would be Congress taking over power of another branch of government) iv. Congress cannot delegate executive power to itself or its officers. State laws that conflict with treaties are invalid 2. Self-executing v. If there’s a conflict between a treaty and federal statute.Medellin v. to be valid. most recently adopted one wins) 3. Federal Executive Power.e.. the one adopted last in time controls (if provisions of treaty and statute are at odds. others are not effective unless and until Congress passes legislation to effectuate their ends.
” This “is a narrow decision” – to avoid usurping the Judiciary power during intense political climate. Appointment and removal power 1. Senate must approve nomination for the person to take office b. Agreement between US and foreign country that’s effective when signed by President and head of the foreign nation. do not require Senate approval to be effective. holding = Youngstown dissent) .” but Congress gets some discretion for lower positions. (Regan wins – suspension of claims legal. never has the Presidents use of troops been declared Unconstitutional by the Supreme Court b. Regan (1981))(“Iranian hostage crisis”) Executive agreements – historical acceptance of bypassing Senate approval for treaties. heads of department. with implicit approval of Congress. US attorneys are inferior officers because they can be fired by attorney general. Executive agreements 1. has power to settle claims of US citizens against foreign governments through an executive agreement (Dames & Moore v. This case demonstrates an intersection of the judiciary and executive branches iii.grant habeas corpus petitions to reconsider convictions of criminals who are foreign nationals and who were not informed at the time of their arrest of their right to notify their consulate of their detention ii. or lower federal courts. Congress can give appointment power to President or heads of agencies . Prevail over conflicting State laws but never over conflicting federal laws or the Constitution 4. May be used for any purpose. Congress may vest the appointment of inferior officers in the President. President. and officers of the US. President has broad powers as Commander-in-Chief to use American chief in foreign countries. President gets to appoint “officers. federal judges. Domestic Affairs i.anything that can be done by a treaty can be done by an executive agreement 3. The power to suspend claims IS within the President’s constitutional authority because Congress has IMPLICITLY authorized the practice of suspending claims through a long history of acquiesces and the settlement is “necessary to the resolution of a major foreign policy dispute. President appoints ambassadors. Who possesses appointment power? a. if its titled a treaty. it requires Senate approval 2.
Congress is free to vest the power to appoint a special prosecutor in the judiciary (Morrison v. by statute. may limit removal if: i. under Appointment Clause. sometimes tries to create federal agencies 2. By President: can remove high level. Congress cannot give appointment power to itself or its officers. Congress can limit President to fire independent counsel (person who investigates President’s wrongdoing). for this reason.e. Synar 1986)) ii. Olson 1988) c. Congress may provide statutory limitations (i. Congress. Congress couldn’t give to the Comptroller General (who reports to the Prez & could be removed from office not only by impeachment but also by a joint resolution of Congress) the function of establishing the amount of automatic budget reductions that would be required if Congress failed to make budged reductions necessary to insure that the federal budged deficit didn’t exceed a legislatively established max amount (Bowsher v. after Morrison v. President can fire any executive branch official a. purely executive officers without interference from Congress. it can limit removal to where there is good cause even for an office that is independent of the President b.. Statute must not prohibit removal. therefore. Congress cannot give a government employee who is subject to removal from office by Congress any powers that are truly executive in nature. A special prosecutor with the limited duties of investigating a narrow range of persons and subjects is an inferior officer.e.i.unless removal is limited by Federal statute. Congress cant limit removal of President’s cabinet 1. It must be an office where independence from the President is desirable. Olson. . i.. Removal Power. however.
Don’t allow states to take actions that might touch upon foreign relations. because the exec order authorizing the commission went byond the limitations Congress had placed on the President. CA announced that it would enforce its law. US v. nevertheless. Garamendi (2003) CA act to aid Holocaust victims that required any CA insurer that sold insurance policies in Europe to disclose certain information. President has no immunity from private suits in federal courts based on conduct that allegedly occurred before taking office (Clinton v. several insurance co’s and a trade . Youngstown: Jackson. Nixon (1974) 1. President’s power over internal affairs as the chief exec is unclear.authority of President to keep secret conversations with or memorandum from advisors. and rules of war. v. Court concluded that such laws are so potentially disruptive of a nationally conducted foreign policy that they are invalid notwithstanding the traditional commitment of probate laws to the states i.Court held that the military commission could not proceed. and that the commission here violated the laws and rules of war 2. Inherent Federal powers. Jones (1997): the immunity is intended only to enable the President to perform his designated functions without fear of personal liability) iii. American Ins. laws. (b) impede the transmission of funds to the US or. found that the exec order was authorized by an act of Congress that was interpreted as limiting the Prez’s power to convenes commissions to those that comply with the Constitution. and there is a long history of presidents issuing exec orders 1. Zschernig v. clearly he has some power to direct subordinate officers. SC has said that President has exec privilege but it must yield to overriding need for information.removal for good cause) on the President’s power to remove all other executive appointees ii. President entered into an agreement with Germany regarding Holocaust victims’ claims and informed Cali that its law would impede the effectiveness of that agreement. Assoc. Executive Privilege. The Prez generally does not have any independent power to use a “memorandum” ordering compliance with a non-selfexecuting treaty that has not been the subject of effectuating legislation by Congress 4. Miller 1968.limits on State and local government power because of the existence of national governments a.Court held invalid state statues that sought to withhold the proceeds of local decedents’ estates from heirs living in nations that (a) discriminate against Americans in their probate laws. Federalism. (c) confiscate property inherited by their citizens.
they can say “federal law is exclusive in this area” ii. SC will not likely strike down on 10th grounds a tax or regulation that subjects states/local governments to regulations that apply to both the public and private sector.this reservation of power is cited as a restriction on Congress’s power to regulate the states. wages for all employees . If Congress evidences a clear intent to preempt state and local laws. any time Congress has authority to act. if its not possible to simultaneously comply with both federal and state law. Preemption. any attempt by state or local law will be deemed preemptive iii. then state or local law is deemed preemptive. Florida adopted law that says anyone who files unfair labor agreements cant collect unemployment benefits. then state or local law is deemed preemptive. 10th. If a state or local law impedes the achievement of a federal objective. 2. etc. held in such cases that the states’ interest are best protected by the states’ representation in Congress. States cannot tax or regulate the federal government. “Constitution and laws made pursuant to it are the supreme law of the land. Express preemption. borrow money. Garcia v. Maryland (Marshall: “power to tax is the power to destroy”). 1.if a federal statute explicitly says that federal law is exclusive in a field. states cant regulate federal government if their action would place a substantial burden on federal activity. state and local laws are preempted. there’s implied preemption. Feds wanted people to file grievances. Immigration law. Congress has the power to charter banks since that power is appropriate to executing Congress’s enumerated powers to tax. San Antonio Met. Transit Authority (1985) Congress can require state and local governments to follow the provisions of the Federal Fair Labor and Standards Act requiring min. Vi contains the Supremacy Clause. then the state law is preempted. Court held the act interferes with the President’s power over foreign affairs and is preempted on that ground b. regulate commerce. McCulloch v. Implied preemption 1. SC made it clear that it wants federal immigration law to wholly occupy the field. 3.” if conflict between fed and local law.association brought suit to enjoin enforcement of the act. If federal law and state law are mutually exclusive.Art. federal law wins and local law is deemed preempted i.
no MP exception to his clause. .). United Building & Constr.among the most complicated areas of Constitutional Law and prevents some discrimination by states against nonresidents i. a state law discriminating against nonresidents may be valid if the state has a substantial justification for the different treatment (must show that nonresidents either cause or are part of the problem its attempting to solve and no less restrictive means to solve the problem ) a. 1. Dormant Commerce Clause: principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. no provision of the provision of the Constitution that says it. Privileges and Immunities Clause of the 14th: this clause is always a wrong answer unless the question involves the right to travel and discriminating against out-of-staters. regulation that interferes with private sector employment may violate this clause unless the regulating entity can show a substantial justification for the regulation 2. Trades Council v. Dormant Commerce Clause and the Privileges and Immunities Clause of Art. from 1873-1999. IV.c. only one case found a violation it was overruled in 1940. limits ability of state to discriminate out-of-states. IV Privileges and Immunities Clause because it gave a preference in private sector employment to city residents. Art.if a person moved into the state from another state. IV. anti-discrimination provision.SC gave it such a narrow construction. in 199. §2 Interstate Privileges and Immunities Clause: while a state/local government doesn’t violate the CC by preferring its own citizens while acting as a MP. Court found that it couldn’t make a final determination as to whether the preference was justified in this case bc the record from the lower courts didn’t allow it to evaluate the city’s argument that the preference was necessary to counteract grave economic and social ills in urban environments caused by spiraling unemployment and declines in the population base of such cities iii. Privileges and Immunities Clause: no state made deprive citizens of other states of the privileges and immunities it accords its own citizens. benefits for first year in CA would be at previous state level. Roe (Ca. Slaughterhouse cases in 1873. SC inferred it ii. Mayor of Camden (1984) Court held that a city ordinance requiring 40% of employees of contractors/subcontractors working on city construction projects to be city residents was an apparent violation of the Art. Saenz v. however.
but permitting in-state wineries to do so if licensed. South Dakota cement factory charged less to in-state purchases (SC said government owned and operated the factory and was literally the market participant) b. freedom of travel is a fundamental right protected by this clause. discriminates against interstate commerce 2. Taylor prohibited out-of-state baitfish. Exception to CC: CC doesn’t prevent a state from preferring its own citizens when the state is acting as a market participant (buying or selling products. hiring labor) i. (2) market participant exception: state and local governments may favor their own citizens in receiving benefits from government programs and in dealing with government owned businesses. If law puts burden on interstate commerce. Analysis of the state or local law is discriminatory a. it then violates DCC. Limitation. state was concerned about parasites. government must show that there’s no less restrictive alternative to achieve its objectives i.1. nonetheless SC found it violated DCC because it put a substantial burden on interstate commerce 4. Universities can charge less tuition to in-state and less to out-of-state (school is a government benefit program). if law burdens interstate commerce. Granholm v. state wanted to preserve natural resources. if it violates the DCC unless its necessary to achieve an important government purpose. Maine v. law is necessary to achieve its objective. if burdens on interstate commerce outweigh the benefits of the law (balancing test) Illinois adopted law regarding trucks. Exceptions: (1) congressional approval: if Congress approves state or local law it is then constitutional even if it violates DCC. government must show that the law serves some important government objective. NJ (trash). If law is not discriminatory: its inapplicable 3. wasn’t discriminatory. although not discriminatory.Interstate Privileges and Immunities Clause . Heald (2005) state law that prohibits out-of-state wineries from shipping wine directly to in-state consumers. Philadelphia v.
ii. it may not attach conditions to a sale that would discriminate against interstate commerce. discrimination against interstate commerce is permissible bc its likely motivated by legitimate objectives. government violates this clause unless its action is necessary to achieve an important government purpose i. Discrimination will be allowed only if it is necessary to achieve an important government purpose . SC applies more lenient standard when a law favors government action involving the performance of a traditional government function (waste disposal). Must be discrimination against out-of-staters ii. v. United Haulers Assoc. New Hampshire law for admitted to practice of law in state. IV: if state or local government discriminates against out of staters with regard to civil liberties or important economic activities. Wunnicke (1984) AK violated the CC when it imposed a contractual requirement on purchasers of state-owned timber that the timber be processed in AK before being shipped out of state c. must be a resident. Corporations and aliens cannot sue under this clause: SC said that the word “citizen” in this clause refers to individuals as citizens iv.“Downstream” Restrictionswhile a state may choose to sell only to state residents. South-Central Timber Development v. SC said this discriminates against out-of-staters for earning a living. and Immunities of Art. Oneida-Herkimer Solid Waste Mgmt. rather than by economic protectionism. Limitation. Discrimination must be with regard to civil liberties or the ability of people to earn a living. Authority (2007) A county flow control ordinance that favored a state-created public waste facility by requiring waste haulers to bring the wastes to the state facility rather than to private facilities is valid d. Court said unconstitutional iii. South Carolina adopted law regarding in-state residents fee for commercial shrimp fishing license. Priv. civil liberties are rarely litigated under this clause.
McClung 3. Congress cannot regulate private behavior. Structure of Constitutions Protections of Individual Liberties Constitution sets the minimum level of protection of individuals. pursuant to 13th. Congress may prohibit private race discrimination. Rendell Baker v. SC reaffirmed this in US v. Morrison 4. Pursuant to § 5 of 14th. 13th prohibits slavery and involuntary servitude. can only regulate state and local governments. when Congress is dealing with a type of discrimination that the SC reviews using heightened scrutiny. Marsh v. Constitution applies to government at all levels and officials at all levels ii. The Constitution. SC has said that Congress has broad power to adopt statutes to prohibit private race discrimination as part of its powers 2. Wilmington Parking Authority (SC: for the government to lease space to a restaurant to discriminate. Congress adopted Civil Rights Acts. Kramer (Courts cannot enforce racially restricted covenants. or the private conduct must apply with Constitution . encourages. private conduct doesn’t have to comply with Constitution. may apply Constitutional norms to private conduct (may regulate private behavior to meet the same requirements that the Constitution imposes on the government). Congress will generally have more power to act iii. Congress can apply constitutional norms to private behavior. Shelly v. provision that regulates private conduct. states generally are free to grant broader protections than those granted in the US Constitution a. means the government is facilitating discrimination). Is there government action? i. race discrimination violates EPC. Pursuant to Commerce Clause. by statute. Congress. Cohen (SC said private school and no indication that State did anything to fire teachers for their speech.5. Exceptions where private conduct must comply with Constitution: 1. receipt of government money isn’t enough for a finding of state action and not enough to . of its own force. the Constitution applies. or facilitates unconstitutional conduct. the Constitution applies. Entanglement exception: if the government affirmatively authorizes. Alabama 2. Katzenbach v.K with members of a neighborhood). Burton v. either the government has to stop what its doing. State action doctrine: misnomer. but corporate racial discrimination is barred by statutes 1. applies only to the government. § 2 says that Congress can enact laws to enforce 13th. public functions exception: if a private entity performs a task traditionally exclusively done by the government.
whereas NCAA operates all over country). Incorporated: a. Right to bear arms b. most important source of limitations on the states’ power over individuals bc. Brentwood v. SC said rights include provisions of Bill of Rights deemed fundamental. distinction was that Tenn. Most important source of limitations on the federal government’s power iii. 7th Amendment “right to jury trial in civil cases” e. 3rd Amendment “right to not have soldier’s quartered in a person’s home” c. seeming inconsistencies among them.make the Constitution apply). never has SC held that all provisions apply to state and local governments. and SC will uphold legislation proscribing almost any private racially discriminatory act that can be characterized as a “badge or incident of slavery” c. 1 by 1 SC has found almost every provision applies at one point though 1. then the private entity must comply with Constitution b. 5th Amendment “right to grand jury indictment in criminal cases” d. Athletic Assoc (State action when a private entity regulates interscholastic sports with a state. B of R applies to state and local governments through its incorporation into due process clause of 14th. 8th Amendment “right against excess defiance” 2. Congressional power (power to adopt appropriate legislation. through the DPC. SC ruled against D.originally meant just to be a limit to federal activity ii. Tarkanian (no state action when a Bball coach at a private university was suspended for recruiting violations. 2nd Amendment “right to bare arms” b. if either exception is met. 14th prohibits states from depriving any person of LLP without due process and equal protection of the law. examples don’t neatly fit together. school sued that it needs due process before being punished. Application of the Bill of Rights i. NCAA is a private entity so it doesn’t have to comply). SC rules against D. entwinement between government and D. operates in one state. B of R applies directly only to federal government. 13th: no requirement of state action. 20th century debate between total incorporations and selective incorporations (only some provisions are fundamental). NCAA v. most of the protections of the B of R are applicable to the states . List of provisions never deemed incorporated: a. Tenn.
contains an enabling clause that allows Congress to adopt legislation protecting the right to vote from discrimination e. Substantive Due Process.used when a classification based on gender or legitimacy is involved. objective. Definitions i.uses this test when a suspect classification or fundamental right is involved. iii. government usually loses. Levels of Scrutiny i. government’s objective just has to be something permissible/reasonable. court must be persuaded that objective Is crucial. Commerce Clause: SC allowed Congress to use CC to limit the power of individuals over other individuals by adopting legislation barring private racial discrimination in activities “connected with” interstate commerce. means chosen must be substantially related to achieving the objective. ii. most exacting.d. will look to government’s actual purpose. government has the burden of proof 6. means must be necessary/least restrictive alternative to attain objective. under the affectation doctrine. means must be narrowly tailored to achieving objective (but not best way or least restrictive alternative). Intermediate scrutiny.used whenever the other 2 aren’t applicable. the challenger has the burden of proof. looks to a sufficient justification/good enough reason . Strict scrutiny. so most governmental action examined under this standard is upheld unless its arbitrary or irrational. must only be a conceivable legitimate purpose. Court Individual Liberties under the Constitution a. a law is upheld if its “substantially related” to an important government purpose. almost any activity can be said to be connected with interstate commerce c. tremendously deferential to the government.” must be “important. law will be upheld only if it is necessary to achieve a compelling government purpose.asks whether the government has an adequate reason for depriving someone of LLP. and compelling. higher threshold than “legitimate.” conceivable isn’t good enough.focuses on the procedures that government must follow when it takes away a person’s LLP ii. Rational basis test (minimal scrutiny). 15th: limitation on both states and federal government. difficult to fail this test. prohibits them from denying any citizen the right to vote on account of race or color. objective needs to be more than legit or important. government has burden of proof. a law is upheld if it is rationally related to a legitimate government purpose. Procedural Due Process.
Equal Protection. written law that creates liberty interests b. depends on level of scrutiny b. Ability of additional procedures to increase the accuracy of the fact finding. What procedures are required? 1. Definitions: a. Board of Regents 2.DPC of 5th (federal) and 14th (state & local) applicable standards: fundamental right (travel. Campbell (2003)) except for particularly egregious conduct. 2.all questions can be broken down into (2) issues: i. Punitive: consider (1) reprehensibility of the D’s conduct (whether the D caused physical harm rather than merely economic harm. punitive shouldn’t exceed 10x the compensatory damages. esp. punitive damages (State Farm v. 4. 3.mere rationality test for business & labor regulations. Balances importance of interest to individual b. whether D acted with reckless disregard. lifestyle. whether conduct was repeated rather than isolated. . voting. Generally. SC 3-part balancing test a. taxation. here. 145x compensatory violates due process a. government has no duty to protect people from privately inflicted harms Deshaney v. A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute. zoning. when the conduct resulted in only a small amount of compensatory damages. (2) disparity bw actual or potential harm suffered by the P and the punitive award. Deprivation of property occurs if a person has an entitlement and that entitlement is not fulfilled (entitlement exists if there is a reasonable expectation to continue receipt of a benefit) Roth v. the more additional procedures will lead to better decisions/avoid 1.looks to whether the government’s differences in the treatment of people are adequately justified. Has there been a deprivation of LLP? Required only if there has been a deprivation 1. Winnebago Department Services(government has no duty to protect people. unless they create the danger or if person is in government custody) ii. Procedural Due Process. (3) difference bw punitive damages award and the criminal or civil penalties authorized for comparable misconduct iii. 1st Amendment) All other cases. privacy. whether harm resulted from intentional malice or deceit than from an accident).
Right of parents to control the upbringing of their children. grossly excessive punitive damages violate due process (BMW v. (4) before parents rights to a child are terminated. an umbrella that’s used to describe a number of specific liberties i. SC said parents have fundamental rights to send kids to parochial school. the government cannot prohibit abortion. Michigan 1996) c. the government can regulate as long as it doesn’t place an undue burden on the right 2. the government is never to constitutionally required to pay for/provide facilities for abortions 3. there must be notice and a hearing. Right to Custody of One’s Children. there must be notice of the charges and an opportunity to explain. Gerald D 1999) iv. prior to viability. parental notice/consent requirements for unmarried minors but only if it creates an alternative procedure where a minor can go before a judge and a judge can approve procedure either by finding the minors best interest or by concluding she is mature enough an make decision for herself . Right to keep the family together v. CT vii. Examples: (1) before welfare benefits can be terminated. (3) when a student is disciplined by a public school. (7) except in exigent circumstances.can show abuse.erroneous deprivation. so government usually has to meet strict scrutiny to interfere. government may seize property used in illegal activity even if it has an innocent owner (Bennis v. there need only be a posttermination hearing. Right to Marry ii. (6) an American citizen held as a enemy combatant must be given due process. spousal consent/notification laws are unconstitutional viii. due process is violated if a court orders grandparent visitation over parents’ objections vi. pre-judgment attachment or government seizure of assets must be proceeded by notice and a hearing. Government’s interest 2.can impose involuntary sterilization iii. Right to purchase and use contraceptives Griswald v. Right to abortion 1.generally regarded as fundamental right. Gore). Right to Procreate. (5) punitive damage awards require jury instructions in judicial review. the more likely it is that the court will require them c. SC has said that a state may create an irrebuttable presumption that a marry woman’s husband is the father of her child (Michael H v. (2) when SS disability benefits are terminated. Right to Privacy. must be notice and a hearing.
government regulation is a taking if it leaves reasonable economically viable use of the property. SC says when it comes to claims of economic liberties. Is just compensation paid? Must be measured in terms of loss to owners. NYC) (Lucas v. homosexual activity (Lawrence v. Is it a taking? 2 alternative ways of finding a taking: a. right to refuse medical treatment (Cruzan v.ix. measured in reasonable market value terms iii. City New London 3. Property owner may bring a takings challenge even as to regulations that were in place when the property was acquired iii. Contracts Clause. only rational basis review is used when it comes to laws affecting economic rights.Art. Is it for public use? SC broadly defined public use so virtually every taking will meet requirement (taking is for public use as long as the government acts with a reasonable belief that the taking will benefit the public Kelo v. Texas 2003) state cant criminally punish this activity x. Glucksberg) d. government may take private property for public use but it must pay just compensation 1. right of adults to engage in private. state may prevent family members from terminating treatment for another xi. (Penn Central v.” . gain to the taker is irrelevant. I.found in 5th. doesn’t include a right to assist in suicide (Washington v. Government conditions on the development of property must be justified by a benefit that’s roughly proportionate to the burden imposed ii. Temporarily denying an owner development of property isn’t a taking so long as the government is reasonable 2. Generally. Possessory takings. § 10. a state may require clear and convincing evidence that a person wanted treatment terminated before it is ended 3. only rational basis review ii. competent adults have a right to refuse medical care 2. “no state shall impair the obligations of contracts. South Carolina Coastal Counsel) i. Takings Clause. Economic Liberties under the Constitution i. since 1930’s all Lochner decisions are overruled. Teleprompter) b.government confiscation or physical occupation of the property (Loretto v. Regulatory taking. Director of Health Services 1990) 1.
it will be valid only if: (a) serves an important and legitimate public interest. SC is suspicious if state government tries to get out of its own K without paying K damages 4. SC for the 1st time held that this creates a right of individuals to use guns apart from militia services. Determining whether legislation is valid under Contract Clause uses 3-part test: a. doesn’t limit government to regulate terms of future contracts 2. Does the legislation substantially impair a party’s rights under an existing contract? If it does not. Blaisdell (1934) c.1. if it does. never applies to federal government. handgun ordinance. v. After Blaisdell. only held that DC ordinance was unconstitutional for infringing right of individuals to have guns. Government interference with existing government contracts must meet scrutiny. Spannus (1978) struck down state statutes abrogating contractual commitments in circumstances where the public justifications were far weaker than in Blaisdell. the legislation is valid under the K clause. v. state and local interference with their own K must meet strict scrutiny. 2nd Amendment Right to Bear Arms.DC v. and (b) is a reasonable and narrowly tailored means of promoting that interest b. Contracts Clause applies only to state or local interference with already existing contracts. C clause believed dead until Allied Structural Steel Co. SC now granted review of whether 2nd applies to state and local governments . Heller SC held that the 2nd protects individuals apart from the purpose of militia services. it was held as a violation of the K clause e. SC says state or local can interfere so long as their actions are “reasonably and narrowly tailored to serve a legitimate and important government interest” (intermediate scrutiny) 3. government may interfere with existing private K if an immediate scrutiny is met. SC didn’t identify a level of scrutiny to be used for this right. because the legislation constituted a substantial impairment of K by changing the compensation for work already completed and bc it wasn’t necessary to remedy an important social problem in the nature of an emergency. Minnesota statute that imposed a moratorium on mortgage foreclosures during a severe depression didn’t violate the K clause Home Building & Loan Assoc.
all districts must be equal in population iii. however. one vote” most be maintained: for all elections. There is not a fundamental right to education under the US Constitution h. the circumstances of the Nixon resignation made him a unique “class of one” as to the need to control his papers. SC says it will chill interstate migration).designated either by name or in terms of past conduct. it’s only subject to a balancing test (Crawford v. the act was held “nonpunitive” and in pursuance of important public policy . Counting uncounted votes in an Presidential election without preset standards violates Equal protection.SC in 1999 found the right to travel is a fundamental right under Privileges & Immunities clause of 14th i. if it’s a general law meant to protect the integrity of the electoral process. “One person. Durational residence requirements must meet strict scrutiny (where people must live in the jurisdiction for a specified amount of time in order to get a benefit.. The Right to Travel. i. At large elections are allowed unless there’s proof of a discriminatory purpose: where all of the voters vote for all of the office holders.e. SC cases say if race is a predominant factor. Gore. poll taxes = unconstitutional because it keeps some people from voting.f. SC held that this wasn’t a bill of attainder. Only a rational basis test is used for restriction on foreign travel. property ownership requirements for voting = unconstitutional. Laws that keep some citizens from voting must meet strict scrutiny.SC used strict scrutiny for right to travel and declared Pennsylvania law is unconstitutional iii. Right to vote. Shapiro v. Using race to draw election districts to benefit minorities must meet strict scrutiny. Bush v. Admin of General Services (1977) Congress passed legislation to authorize government control of the presidential papers and tape records of Nixon. Marion County) ii.SC held that counting uncounted votes was unconstitutional vi. 2 requirements preclude finding of B of A: (1) both judicial machinery for trial/punishment of crime and (2) definition of criminal conduct in such general terms as not to ensnare within the definition a single individual for punishment bc of past behavior i. both federal and state governments are prohibited from passing B of A. government must meet strict scrutiny v. Bills of Attainder. not fundamental right to national travel g. Laws that prevents people from moving and entering a state must meet strict scrutiny ii. Nixon v. Bolden iv.SC said right to vote is fundamental right under EPC i. City of Mobile v. Thompson.
Paradise upheld the strict scrutiny c.law and its terms distinguished among people. Strict scrutiny is used. Crowson v.assurance that neither State nor Federal government can deprive any person of LLP without due process a. Does the law meet the level of scrutiny? The level of scrutiny is the rule that’s applied to the facts in the question b. Alternatively. no provision that says government cannot deny equal protection c. Numerical set asides require clear proof of past discrimination. How is the existence of a race or national origin classification proven? 2 ways: 1. they had to pass a test.7. classification exists on the face of the law. Strict scrutiny is used (the test whenever the government discriminates based on race or national origin) ii. SC is hostile to anything that looks like a quota because set-asides are allowed only as a remedy for clearly proven past discrimination. or benign. What is the level of scrutiny to be used? iii. Educational institutions may use race as one factor in admissions decisions to benefit minorities. Southern states has laws segregating schools 2.e. The equal protection clause for the 14th applies only to state and local governments (the 14th never applies to the federal government) ii. West Virginia had a law that only whites could serve on juries. Board. i. Bollinger SC said that colleges have a . Equal Protection. until Brown v. whether the racial classification is invidious. Equal protection is applied to federal government through Due Process clause of 5th Amendment. if a law is facially race neutral. Richmond. Constitutional provision concerning equal protection i. How should racial classification benefiting minorities be treated? a. An approach to equal protection i. in 19th century. proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent. strict scrutiny is always the test b. DC had a requirement that in order for a person to be a cop. Race and national origin classifications i.. blacks failed that test more often than whites and a challenged was brought under equal protection 3. Grouter v. disadvantaging minorities. US v. What is the classification? How is the government drawing a distinction among people? ii.
SC has said that many gender classifications that appear to benefit women actually perpetuate destructive stereotypes . US v.proving a gender classification requires demonstrating both discriminatory impact and intent 3. Intermediate strict scrutiny. Elementary and high schools may use race in assigning students to schools as long as strict scrutiny is met. if a law is facially gender neutral. test is still intermediate scrutiny ii. How should gender classifications benefiting women be treated? Intermediate scrutiny is the test a. but also made clear that colleges cant set aside slots just for minorities or add points to applicants admissions scores solely based on race (Gratz v. Gender classifications benefiting women based on role stereotypes aren’t allowed. Gender discrimination i. Classification exists on the face of the law.compelling interest in a diverse student bodies and may use race as one factor to enhance diversity to benefit minorities. SC said high school may use race to place students in schools to achieve desegregation only if government meets strict scrutiny d. How is existence of gender classification proven? 1.Craig v. Bollinger) d.SC said that gender discrimination allowed only if exceedingly persuasive justification. Boren. Alternatively. Virginia (Virginia military institute state university only allowed men) 2.
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