Notes: Need to cite article on exam Exam notes: Does Congress have the authority Where does the

power come from, the source/power Commerce clause, tax/spend (the broadest source of power Congress has) If you see a federal law based on the commerce clause, determine WHO is regulated. If both private and governmental actors are subject to the law, Garcia applies and the only protection a state receives is from its participation in the national legislative process. If only a state is regulated, and Congress is effectively commandeering a state legislature or a state executive officer, the federal law will be invalid because Congress can’t force state officials to perform federal functions. This kind of law violates the principle of “dual sovereignty” under which states must be free to structure themselves and their essential activities in accordance with the wishes of the state electorate Question to ask 1st: who is acting: fed/state/both 2nd: power source

Federalist Papers Basic outline of the Constitution I. Article 1 – sets up the power of the legislative branch a. To pass a bill requires a majority not 2/3 (2/3 for veto override) b. Section 8 – powers of Congress i. [3] sets up the most regulatory power that Congress has (regulate commerce) ii. [18] necessary and proper clause 1. not independent, must be used with another enumerated power (power delegated to branch by the Constitution) iii. Section 9 [1] – slave clause; northern states felt that it was unfair due to the free labor that the southern states received II. Article 2 – creates the executive branch of government (president) a. The 3 main powers are: 1. commander-in-chief (civilian in control), 2. power of appointment (Cabinet members, head of departments, ambassadors, judiciary, etc), 3. chief executive (faithfully execute laws of Congress) III. Article 3 – creates the federal judiciary branch a. One supreme court b. Congress may, but is not required to, create lower federal courts; lower courts established in Judiciary Act of 1789 IV. Article 4 – “miscellaneous clause” unrelated topics, main clause deals with the admission of new states a. Section 2 [2] – property clause (2nd biggest source of regulatory power by Congress (behind Article 1, section 8 [3]) V. Article 5 – process for amending Constitution a. The framers designed it to be a hard and difficult process so that it wouldn’t be changed easily VI. Article 6 – section 2: supremacy clause ( the supreme court is the supreme law of the land VII. Article 7 – Ratification of the Constitution VIII. Bill of Rights (1st 10 Amendments), wrote by John Madison, 1791 a. 5th – due process b. 9th and 10th – powers are not vested with federal government but remain with the states i. 9th – the fundamental rights protected even though not in bill of rights (ie. The right to marriage) IX. 14th Amendment- After the Civil War slaves have citizenship and due process Judicial Review I. Background information a. Remember to think that this course is about government power – who has it and how can it be used; also think about the structure of our form of government b. Themes to remember

i. Separation of powers – the horizontal relationship between the 3 branches of federal government (checks and balances); and 1. horizontal analysis arises when one branch of the federal government takes some action which interferes with an attribute or power of another branch ii. Federalism – the vertical relationship between federal government and States 1. Analysis: Congress passes a law which interferes with a State’s ability to function as an independent sovereign II. Article 3 of the Constitution establishes federal courts Section 1 vests judicial power (vested in one supreme court, such inferior courts as Congress may from time-to-time establish) a. Federal judiciary has the power, under article 3, to decide enumerated case and controversies (enumerated: specifically delegated to government branch by the Constitution Section 2 clause 1). Scope of this power includes the power to: i. Declare the meaning of federal law; ii. Declare the constitutionality of federal and state laws and the acts of federal and state officials iii. Section 2 clause 1: judicial power extends to all cases in law and equity; arising under Constitution, US laws and treaties 1. Judicial power extends to: a. Where US is a party; between 2 or more states; between citizens of different states III. Jurisdiction (2 types: original or appellate) Section 2, clause 2 outlines jurisdiction a. Original (maybe 1 or 2 a year) i. SC has original jurisdiction in all cases “…affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party…” 1. “State” means when one state is suing another b. Appellate (99.9% of the cases) i. In all cases other than those for original jurisdiction, the SC has appellate jurisdiction, with such exceptions and regulations as Congress should make c. Restriction of appellate jurisdiction: Congress has the power to limit SC appellate jurisdiction (upheld in Ex Parte McCardle (1869) i. Ex Parte McCardle (1869) IV. Scope derived from a series of decisions a. Marbury v Madison (1803): power to review federal laws and the acts of federal officers, and to declare the meaning of the Constitution i. Facts: Marbury sued to compel delivery of his commission as a Justice of the Peace after President Jefferson and Secretary of State Madison failed to deliver it to him after President Adams had appointed him. Marbury sued seeking writ of mandamus (legal duty to perform act) 1. Marbury had legal right to commission, remedy was the writ of mandamus a. Issue was the writ was filed in the SC; if they can resolve it they have to have original jurisdiction; thus the conflict btw the Judiciary Act and the Constitution

ii. Chief Justice Marshall held that Section 13 of the Judiciary Act of 1789 was unconstitutional because it sought to confer on the SC original jurisdiction over a type of dispute over which the Constitution gave it only appellate jurisdiction. Where a statute violated the Constitution it was the duty of the courts to apply the Constitution as paramount law which superseded inconsistent statutes. 1. Congress may not expand the SC’s original jurisdiction 2. In the event of a conflict, the Constitution prevails iii. These two principles–the preeminence of the Constitution and judicial review–were not explicitly provided for in the Constitution but are supported by various types of constitutional argument. iv. Result: federal judiciary has review power over the other branches of federal government; this greatly enhances power of the SC 1. Marbury went to the wrong court to file his writ 2. Jefferson as a Republican/anti-federalist had the real interest in the case 3. Chief Justice Marshall was concerned about impeachment which is why he sided with Jefferson and confirmed a huge amount of power to the federal court b. Martin v Hunter’s Lessee (1816): power to review state court decisions (civil matters); Cohens v Virginia (1821) reaffirmed for criminal matters; power to review action of state officials upheld in Cooper v Aaron (1958) where the issue was can a governor (non-federal official) refuse to abide by a federal order i. Martin facts: VA to help fund the Revolutionary War debt seized the land of loyalists, thus Martin’s land was seized and sold to Hunter. Martin sued saying that it violated the anti-confiscation clause of 2 treaties. VA argued that SC didn’t have jurisdiction over VA because they are co-sovereignties. 1. Issue: whether article 3 extends SC’s appellate jurisdiction to state court decisions; the federal question was the treaties that have the anticonfiscation clause a. Congress has discretion to create lower federal courts i. If SC lacked appellate jurisdiction, it would be powerless to hear cases on appeal b. SC appellate jurisdiction over state court decisions involving questions of federal law is necessary to ensure national uniformity i. Can’t have 50 different interpretations of the Constitution, a federal statute or treaty 2. Court upheld the constitutionality of section 25 of the Judiciary Act of 1789 which empowered the SC to review certain decisions of the highest state court which, generally speaking, ruled adversely to some federal right or claim. The Court rejected Virginia’s position (cosovereignties) that its courts’ interpretations were not subject to federal review regarding federal law 3. Result: Martin owns the land, SC sends the case back to VA DC as an act of diplomacy so there won’t be butting heads between VA court of appeals and the SC c. Cohens v Virginia – reaffirms the Martin case

Political Question: some disputes are not justiciable (they are not able to be resolved in a court of law). The House of Reps voted 3 articles of impeachment. Limitations on Judicial Review (WEEK 10 material: mootness.there are checks on the SC which is based on separation of power concerns a. a look at impeachment as a check on the federal judiciary ii. Constitution places responsibility elsewhere. i. Textual (sometimes called constitutional): The text of the Constitution suggests that another branch should decide a. Nixon v United States: Nixon a federal judge was convicted of a felony. they are to be decided by the political (elected) branches of the federal government i. only way that the SC would get involved would be if there was another constitutional issue (ex. Rather. meaning those questions that are committed to another branch or those which the judiciary cannot or should not decide. overview of the political question doc. impeachment starts by House (takes majority to approve articles of impeachment). Chief Justice: it’s up to the senate to determine how the trial will be run – it’s not the job of the SC.thus the SC bows out an there is no issue for judicial review 1. Other wording: political questions. if it is impeachment of a President the chief justice oversees iii. State courts/state SC will as authorized by state law c. standing. There are both constitutional and prudential limitations on the exercise of judicial power by a federal court b. impeachment then moved to the senate. Judicial review is not unlimited. Senate trying to ensure he gets a fair trial. chief justice agrees he did iv. Federal courts will not issue advisory opinions: advisory opinions are not within the article 3 definition of a “case or controversy” i. Courts are not competent to decide 2. ripeness goes here) page 14-15 in review book a. 2 key concepts: 1. Result: Nixon is removed from office vi. Nixon challenged senate rule XI that all impeachments should be tried by the senate not by the 10 member committee who made the recommendation to the full senate 1. the supermajority). are nonjusticiable 1. if there is a clear branch entrusted in control of an issue the court will remove themselves and let the other branch handle it ii. b. 2 categories of political questions (textual or prudential) 1.V. Impeachment review from Nixon . then trial takes place in Senate (2/3 vote required. 2. Due process) v.

Attack on nature of government. judicial review inconsistent with separation of powers. difficulty of fashioning appropriate relief 3. are political questions ii. since “impeachment was designed to be the only check on the judicial branch. goes back to the 1780s): . not tax. rejected vesting impeachments in judiciary 2.1. Civilian control means political accountability 2. and whether a proposed amendment lapses if not ratified in a reasonable time. Political gerrymanders (redrawing the political boundaries/districts by those in power. ii. Regulating the militia: Gilligan v. Lack of judicially discoverable or manageable standards – “too hot to handle” category i. lack of finality 2. Precedent: court distinguished Powell v. McCormack (1969) b. Guarantee clause: Pacific States T&T v. the SC steps out of the proceeding because they don’t have the authority iii. Prudential (judiciary self-imposed) a. try not meant as a limitation on procedures. wanted to keep impeachment and criminal proceedings separate 3. difficult to conceive of a clearer example of the kind of government action “that was intended by the Constitution to be left to the political branches [or]…in which the courts have less competence. History: no evidence that framers intended judicial review of impeachment proceedings 1. Senate would not have “sole” authority to try impeachment vii.” 3. textually committed to the political branches of government (President is commander-in-chief). These “prudential” political questions reflect a judicial deference to decisions made by other branches of the federal government b. whether a state can ratify an amendment once rejected. Consequences: bad consequences would result from judicial review of impeachment proceedings: 1. Test: Court examined the words “try” and “sole”. Other textual commitment examples i. Morgan (1973) 1. Some disputes are deemed political questions even though the Constitution does not specifically commit these issues to the executive or legislative branch for decision. the federal court doesn’t have the knowledge to regulate 2. Constitutional amendments: Coleman v Miller (1939) 1. viii. Oregon (1912) 1.

Sometimes there can be both kinds of questions presented a. etc. limited to only when gerrymandering is over the top 2. the impossibility of a court deciding the case without an initial policy decision by another branch. Vieth v Jubelirer (2004): 4-justice plurality concluded political gerrymanders nonjusticiable because there are no judicially manageable standards to decide when Equal Protection clause has been violated 1. “dominant is the need for finality in the political determination…. the SC doesn’t like to deal with foreign affairs a. need for a court to show proper respect for decisions made by other branches 4. Baker v Carr (1962): court lists following factors as guidelines for whether a dispute is “prudential” political question which a court should avoid hearing: 1. need to adhere to a political decision already made. President is authorized to create treaties. Courts cannot or should not try to resolve the issue “too hot”: i. Constitution is silent as to termination b. Bush with desert storm (also Goldwater) federal judge said it was: i. the question is do federal courts have any authority over this? Yes. foreign affairs (hostilities): Baker (dictum) a. textual because the President can send troops and Congress can declare war . issues to watch for in “too hot” include: 1.” 3. Justice Kennedy concurred in result because no standards shown in this case – but doesn’t agree that all gerrymandering cases are non-justicable c. Carter rescinds the treaty and senators challenge because Congress can ratify treaties so court said it was a political question a. in general. and. 5. potential embarrassment from multiple pronouncements on the same issue ii. appoint ambassadors. foreign affairs – termination of treaties: Goldwater v Carter (1979). As to the beginning or end of hostilities. lack of judicially discoverable/manageable standards for resolving it. 3. Dispute between coequal branches 3. so they don’t get involved 2. 2.courts have no manageable standards by which to judge the constitutionality of political gerrymanders i.

produce the body) appeals conferred by an 1867 Act. Ex Parte McCardle. can’t use it as precedent if it is denied iv. appellate jurisdiction remained as conferred by the Judiciary Act of 1789 so all routes to the Court were not eliminated i. This is an ultimate check on the executive body ii. Congress is the only body that has the right to suspend the writ of habeas corpus (suspension clause) in time of invasion. clause 2 is subject to such exceptions and regulations as Congress shall make – even up to and after oral arguments in a specific case’ unusual. rule of 4: takes 4 votes by justices to put case on SC docket c. Still. but questions remain – how far can it go? b.ii. Congress can make exceptions to. could SC hear McCardle’s appeal 1. that they changed the law and made it retroactive after he filed his writ d. SC appellate jurisdiction in article 3 section 2. Congressional control: at least 2 ways i. free exercise of religion is a textual right under the Constitution. thus there were both types VI. 2 major issues are school prayer and abortion (there are reoccurring bills to take federal power of cases) 1. SC says that Congress has that right (textual analysis) iii. Congress may exercise this power. but it happens a. Regulation of Judicial Power a. Congress needs not create lower federal courts ii. prudential because not a declared war and the courts don’t know what is considered a war 1. McCardle would have had a better argument under ex post facto. Majority of cases to the SC are denied 1. there must be a federal questions ii. thus they can not repeal right over school prayer 2. SC’s appellate jurisdiction 1. etc. 1. only 30% of cases that SC hears come from the state court 2. held that Congress had power to remove the Court’s appellate jurisdiction regarding habeas corpus (asking the branch that is holding the person to show that it is authorized. abortion – guaranteed under the 5th amendment liberty clause but not as clear VII. Judicial stripping: question can Congress do this? i. Two routes of appeals to the SC (appellate review) i. when the SC was ready to rule Congress repealed a piece of the statute because they were worried that SC would rule all of the reconstruction act unlawful a. Ex Parte McCardle. Majority begin on the federal court side because there is a conflict in rulings between 2 or more circuits in the court of appeals iii. and can regulate. Writ of certiorari to try and move from state to federal court 1. Issue: in light of repeals of jurisdiction. (1868). Judicial Review Prerequisites (key is a federal question that was preserved .

National Legislative Power – Commerce Clause . v. 2. court presumes state law grounds not adequate and independent: Michigan v Long (1983) vi. and the SC cannot change the result of the case ii. iii. Prerequisites i. but they do have the discretion to take them ii. has highest appellate court of state ruled on the Steps in “adequate and independent state grounds” analysis 1. can the SC change the result of the case by ruling on the federal question a. the adequate and independent state grounds doctrine arises when the highest appellate court of a state decides a case involving both state and federal issues a. and. does the case involve questions of both federal and state law. To be reviewable. Independent: state law ground is independent if it does not depend on resolution of federal law. several prerequisites must be satisfied before a federal court will review a state court decision b. Issue duly raised i. 3. adequate and independent state grounds analysis is a judicially imposed limitation on the ability of the SC to review decisions by the highest appellate state court 1. As general matter SC will not take a case which is based primary on state law. Can decision on federal issue change the outcome or is it purely a secondary or ancillary issue? e. Intended to avoid premature or unnecessary federal review and advisory opinions c. not likely to be adequate and independent state grounds. If state law tracks or is based on federal law. Main concept: In addition to being justiciable. if yes to all 3 questions there is no adequate and independent state basis for decision and the SC may take the case VIII. iii. Adequate and independent state grounds (federal court will not take out of respect for the state law) i.a. Absent clear statement. decided on basis of state constitution or state statute iv. Final decision. Federal court will not review a decision based upon adequate and independent state grounds: i. Federal issue must have been preserved 1. Issue of federal law (federal question). federal issue must have been raised and preserved in state court f. can’t rise for the 1st time in federal court d. the SC will not review such a case if the state court based its decision solely on state law. Adequacy: state law grounds are adequate if decision on issue of federal law cannot change the outcome. ii.

Rivers. Section 8 – enumerated federal legislative powers. internet. Economic activity of some kind iii. electronic instrument. if Congress wants to regulate something they need to find something in Constitution that allows them to – typically done under the commerce power ii. section 8 1. later cases would continue to expand a. Necessary and proper clause – major source of implied power or elasticity for enumerated powers 3. Scope of legislative authority: a. Local activities with substantial affects – (close substantial relationship with interstate commerce) d. [1]: tax and spend “for the common defense and general welfare…” 1. oceans. Congress doesn’t have police powers to regulate the general welfare of the country as a whole. Congress must have discretion to choose means b. Congress can regulate the instrumentalities of interstate commerce – Houston Railway v US.a. this is the big source of power . 18 clauses enumerate most powers – examples: i. the scope is quite broad 2. clauses 1-18) i. satellites. Main concept: Legislative power is vested in the Congress. Most legislative power is enumerated in article 1. train. Congress can regulate the channels of interstate commerce – the lottery case b. Commerce clause (Overview) 1. Gibbons v Ogden: set the tone for an expansive reading of federal commerce power a. etc c. framers felt legislative was the most important branch – why it is set up first in the Constitution 4. it resides with the states a. Daniel Ball 3. Three categories of commerce a. Structural overview of article 1 a. Channels and instrumentalities (Instruments) i. Crossing state lines (things involving channels of interstate) i. are within the commerce power 2. “All legislative powers herein granted…” b. Important that there is a GOOD and MOVEMENT i. Section 1 – vesting of federal legislative powers i. Interstate commerce. lake. and intrastate commerce with interstate affects. Article 1 1. etc b. section 8. The thing that is carrying the commerce – boat. Sources and Nature: (where does it come from in Constitution – article 1.

cannot be used by itself as a source of power vi. [18]: “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers [1-17]. and all other powers vested by this Constitution…” 1. no duties on imports or exports without consent of Congress c. Very important b.ii. Article 1. and among the several states. No tax on exports from any state 3. and with the Indian tribes” 1. McCulloch v Maryland: MD imposed a tax on banks operating in MD not chartered by the state. Section 10 – state limitations a. among others 2. Section 9 – federal limitations (framers were worried after British rule) a. it needed something else a. Necessary and proper clause – Congress has the power to pass laws to enable itself or any branch or officer of the federal government to carry out any constitutional power a. [3]: “regulate Commerce with foreign nations. Issues: did Congress have the power to incorporate a national bank and does the state have the power to tax 1. No suspending habeas corpus (writ to ensure imprisonment is legal) except in cases of rebellion or invasion i. No bills of attainder (person’s civil rights/penalty against a particular person) or ex post facto laws (after the fact) c. regulate commerce. the 14th amendment section 5 is another source of regulatory power. [12] & [13]: raise and support army and navy v. the commerce clause is the main source of regulatory power iii. it wasn’t an enumerated power to create the bank. National bank acted like today’s federal reserve. the commerce clause is often relied on as a source of regulatory power. flexibility for Congress to use with enumerated to address other issues iii. no laws impairing obligations of contracts b. [11]: declare war iv. no agreements or compacts with foreign powers iv. The state argued that they are a sovereign and that Congress doesn’t have the power to regulate. make war . but the scope of this power has changed over time a. the ability to collect tax. must be used with another constitutional provision ii. Article 1. the power comes from the necessary and proper clause i.

but consist with the letter and spirit of the Constitution. “let the end be legitimate. thus it was necessary and proper 2. it is not an unlimited power and the court remains in the opinion that it must remain within the enumerated power v. or essential i. enumerated powers over a. let it be within the scope of the Constitution. Congress has a wide discretion on the meaning of “proper” i. Other examples of sources/methods of power 1. states can’t impose additional requirements as seen in Johnson where the state tried to impose term limits for federal elected officers a. citizenship. the SC said this wasn’t allowed. these are the reasons for needing the national bank. the only 3 requirements for serving are age. and the necessary and proper clause falls under the enumerated powers b. The SC has interpreted the necessary and proper clause to mean that Congress may choose whatever means it deems convenient to carry out some power of government a. useful. etc c. United States v Comstock: issue of detention of a mentally ill. case illustrates that the conflict still exists between state and federal powers vi. the bank was necessary. They defined necessary as: convenient. Even today the conflict between states and federal power exists 1. thus an interest in it for flood control. we look whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power” a. the states aren’t allow to add more b. tax/spend clause – Congress’ broadest power for general welfare of nation . agriculture – improving science b. Issue was where does Congress get the authority to change the detention: it comes from the necessary and proper clause 1. which are not prohibited. ie – there has to be a “hook” (something federal) here there was a connection between a federal crime and commerce i.1. property clause – because land around dam is owned by federal government and leased out. “determining whether the necessary and proper clause grants Congress the legislative authority to enact a particular federal statute. if there is a power to create the national bank can it be taxed? No. the power to tax is the power to destroy 4. and all means which are appropriate. example – immigration: states don’t have the power as AZ tried to do 2. Thus. and residency. sexually dangerous prisoner. are constitutional” 3. which are plainly adapted to that end. thus Congress is within their power to use the necessary/proper clause vii.

what is “among” the several states i. section 8. if there is a conflict between federal and state law.due process. and among the several states. Here the commerce was the transportation between NJ and NY (interstate transportation) iii. NY argues for co-sovereign. controlled by the state – an exception that held for 40-50 years . 2nd: are there any instruments a. treaties with other nations are a source of power b. in order to create uniformity because it deals with navigation and interstate and foreign commerce 3. no commerce. Gibbons v Ogden: conflict between NY statute for monopoly of navigation of the Hudson river and federal statute authorizing use 1.2. and with the Indian tribes i. clause 3. NY doesn’t have the authority it sits with the federal government. commerce within a particular state may concern more then one state iv. federal courts have exclusive jurisdiction for admiralty/maritime law. The nature of the commerce clause is a broad power and the only are when it is limited by the Constitution (ie. what is commerce i. etc) 1. Ogden said it should be limited to trafficking. thus. Congress has the power “to regulate commerce with foreign nations. commerce that concerns more than one state ii. or buying/selling or goods not navigation 1. the people being moved 4. Analysis of what is commerce: 1. Three Issues: a. the stream boat 3. Yes. is beyond the commerce power 1. First: is there a channel of commerce a. Movement of goods/services between states is subject to regulation by federal government iv. and without interstate affects. includes the power to regulate interstate commerce within the territorial jurisdiction of states iii. commerce that is entirely intrastate (doesn’t cross state line). The National Commerce Power – under article 1. Yes. the federal government has jurisdiction to regulate a. federal always wins b. 3rd: are there instrumentality (what’s being moved/carried) a. Yes. the Hudson river 2. Because it’s a Yes to all. and navigation doesn’t count – all arguments fail ii.

under commerce power. instruments – car/train 3. carried goods within MI that were destined for other states 2. instrumentality – the tickets c. etc: the power lies with the federal government to regulate ii. thus holding Congress wins . Champion v Ames (the lottery case): statute prohibiting movement of lottery tickets across state lines. examples – transporting mistress for prostitution or kidnapping (economic issue is vague. there is a concern that there is an “evil in gambling” b. and b. and the regulations just occur on selling tickets outside of the state. channel would be the roads/rails 2. Expanding/extending the reach of the commerce power 1. The tickets are being shipped state to state 1. but probably for ransom). Daniel Ball: upheld regulation. Business purpose – as long as there is multiple states involved 1.2. Court say the federal government can regulate. Majority said that the tickets can still be sold within the state. carried goods within MI that came from outside of the state. does the Constitution limit Congress’ authority to regulate under the commerce clause i. Dissent is concerned that the regulation of tickets is a 10th amendment issue that the states should deal with 1. simply furthering policies of states that prohibit lotteries 2. the ship was the instrument of interstate commerce 3. Court said that the commerce power is broad and the power to regulate includes the power to prohibit i. Congress is not interfering with intrastate commerce. of a ship navigating entirely within MI waters shipping boiler systems 1. Court held that it was within the power of the federal government to regulate because the boilers were part of the chain (ie the stream of commerce theory) c. The “hook” with the commerce clause is i. Interstate Commerce Act – 1st amount by Congress to break down monopolies v. Tickets are the instrumentalities and things moving in interstate commerce a. ship was engaged in commerce among the state because it a.

the goal was indirectly to standardize the ages at which kids could work b. This is not allowed because one purpose of the commerce power was to prohibit state discrimination against interstate trade – ie to promote a national economy and trade b. “…they seek to send their products across state line they are no longer within their rights…” . This would also apply if it was a passenger train c. Regulation of national economic problems: limitations on commerce power through 1936 (shrinking commerce power “Lochner” era) i. it resembles a police power but it is for regulation of interstate commerce i. because the women are moving across state line. Congress’ authority over interstate instrumentalities of commerce includes the right to regulate matters having a “close and substantial relation to interstate traffic” (this survives even today) i. Houston EW TX Railway v United States: beginning of the 3rd category of interstate commerce (close/substantial relationship) TX is charging a higher rate for out of state versus in state rates to give a competitive advantage for their producers/shippers a. manufacturing at this point is not interstate commerce and states have the power to regulate child labor laws 2. To protect interstate commerce. Hammer v Dagenhart: held that Congress could not impose standards for employment of children within the various states. which prohibits transporting of women across state lines for prostitution. but the court held no ii. fact that goods were intended for interstate transport did not make production subject to federal control i. even by children. Holmes dissent becomes the majority in 1937 – that court shouldn’t be deciding cases based on the era or current economic theory but on precedent a. Congress trying to regulate child labor products and of course the Congress can regulate this i. which is a regulation reserved for states under the 10th amendment 1. is purely a local matter. Hoke v United States: involves violation of the Mann Act.2. aim of the law was not to regulate the channels of interstate commerce or transportation among the states a. “Congress has power over transportation among the several states…and the means may have the quality of police regulations” 3. using the Lottery Case as a base this should be allowed. Congress may use all measures “necessary or appropriate to that end” even though intrastate activities are regulated ii. Issue can Congress regulate prostitution a. Yes. The idea was that production of goods. Court stated the rule bluntly.

manufacture. the commerce power allows Congress to regulate (these are the 3 categories of interstate commerce) 1. Gibbons set the tone for a broad commerce power a. Congress can regulate channels and instrumentalities (Hoke. reflected the laissez faire era of hostility towards governmental intervention b. wages.3. agriculture. and production d. also reflected federalism concerns i. Economic activities that are intrastate. Instrumentalities of interstate commerce 3. Congress can regulate interstate commerce and intrastate activities that affect interstate commerce (Gibbons and TX Rail) ii. Direct – indirect distinction . Era 1: Pre-1890s . but that substantially affect interstate commerce a. and TX Rail) iii. Daniel Ball. included regulation of things like mining. Holding: the regulation fell outside the commerce power because the regulated conduct had no “direct” effect upon interstate commerce i. instrumentalities. General concept: the scope of the commerce power waxes and wanes over time with changing interpretations of the commerce clause. Lottery Case) 2. 10th amendment reserved to states a “zone of activities” under the police power 2. Regulation of interstate activities not limited to “commercial” activities (Hoke. Laissez-Faire economics controlled Court 2. Court struck several New Deal laws intended to rehabilitate the economy 4. hrs. the channels of interstate commerce 2. but had come to rest locally b. and collective bargaining in NY poultry slaughtering market where 96% of poultry came from out of state a. dual sovereignty was the controlling doctrine 1. court began to impose limits in mid-19th century iii. and “close and substantial” in relation to interstate commerce ii. Issue the poultry was not in the stream of interstate commerce.Early Commerce Power (expanded reach) 1. A liberal reading of commerce power i. Four eras i. Era 2: 1980s to 1936 – Lochner Era (contraction of power) 1. Schechter Poultry v United States 1935: SC struck down code to regulate trade practices. Understanding channels. Today. between the lottery case and here was only 6 years and the composition of the justices changed a. Scope of commerce power severely curtailed 3.

Era 3: 1937 to 1995 – expansion (modern doctrine) 1. Ushered in by 3 decisions which set the framework for commerce clause doctrine of today: a. Issue: can Congress prohibit shipment in interstate commerce of goods produced by workers whose wages and hours violate FLSA (looking to use the stream of commerce theory)? . the three main industries at the time the government had no power to regulate (mining. under the commerce power. “production is a purely local activity” ii. Carter v United States 1936: SC holding: Congress couldn’t require certain coal producers to comply with federal min-wage and max-hour requirements. United States v Darby (1941) approved Fair Labor Standards Act c. This is the 1st of the judicial justifications for an expanded commerce power i. NLRB v Jones & Laughlin Steel: Rule: Congress can. Regulations sought to control things like hrs and wages of workers who were not in interstate commerce 5. Thus. question is “what is the relation between the activity or condition and the effect” iv. of manufacturing. manu. reach intrastate activities if those activities have a close and substantial effect on interstate commerce a. Wickard v Filburn (1942) sustained the Agricultural Adjustment Act 3. Elaborated on the direct – indirect distinction i. agriculture) b. United States v Darby: a lumber company who the majority of lumber produced moves out of state (interstate commerce). raw materials  steel mills  finished products. “the local character of mining. Distinguished commerce and other activities i. Commerce power expanded significantly – virtually no limits 2. and of crop growing is a fact…whatever may be done with the products” 1. Court said stream. The commerce clause was held to be a sufficient basis for the national labor relations act which Congress passed to deal with labormanagement issues i. The mining of coal was purely local activity that fell outside the reach of the commerce power a. Distinction between a direct and an indirect effect turns entirely upon the manner in which the effect has been brought about 1.ii. NLRB v Jones & Laughlin Steel (1937) upheld National Labor Relations act b. gave right to regulate b. Congress could restrict the ability of a steel company to discharge employees because of union activity. “close and substantial effect on commerce” 4.

a federal law limiting the amount of wheat that could be grown by one person. in addition. Even though F’s activity. Federal power not precluded because activity is agricultural production at a local level c. This is a departure from the 30s – concern is that the consumers get the warning 6. Wickard v Filburn (1942): there was a wheat surplus so Congress was trying to regulate the market by overpaying for their allotment. “aggregation theory” 1. Congress can. reach an intrastate activity which. The overproduction affects interstate commerce and competes with the open market a. though by itself trivial. had a substantial impact on interstate commerce i. F’s activity together with that of other farmers across the country. The SC held: as applied to a small farmer. if that activity. but shipment of goods interstate is subject to regulation under commerce clause b. has a minimal impact on interstate commerce. by itself. United States v Sullivan (1948): held that the constitutional power of Congress under the commerce clause to regulate the branding of articles (here prescription medicine labels on bottles) that have completed an interstate shipment and are being held for future sales in purely local or intrastate commerce a. has a substantial impact on interstate commerce b. Prohibiting shipment in interstate commerce of goods produced under substandard labor conditions is within commerce power – prevents unfair competition by undercutting the competition with wages c.a. under the commerce power. Congress could regulate him b/c in the aggregate. when all of the instances of that activity aggregated together are substantial . taken together with all other examples of that activity. FDR appointment 4 justices) “the switch in time that saved the nine” 1. had a negligible impact on commerce. they cite the Lottery case – the other evil (gambling from Lottery) 2. This is the 2nd of the judicial justifications for an expanded commerce power i. The Congress was trying to get the economy started i. Manufacturing is not interstate commerce. Congress may regulate an individual instance of the activity. The SC overruled Dagenhart and Hammer (that it only takes place locally) because the composition of the court changed (death and retirements. by itself. Congress uses its “police” power to regulate evils (wage/hrs) 5.

The court said that where a class of activities is within the commerce power. The federal consumers credit protection act legitimately was applied to local loan sharks b/c Congress could reasonably conclude that loan sharking is an integral part of organized crime which. This is the 3rd of the judicial justifications for an expanded commerce power i. individual instances of the class b. Congress may regulate any particular actor or activity within the class a. Protection of other interests (racial discrimination) through the commerce clause (still era 3) 1. In 2 cases.7. Substantial relationship test 1. The SC upheld Congress’ ban on purely intrastate extortionate credit transactions because they may affect interstate commerce. people are the instruments are moving by trains. The connection to commerce i. Amounts to a huge burden for blacks traveling in the south ii. not limited by facts that the obstructions to commerce were also moral and social wrongs 2. Court said it was fine but the power can’t last forever v. as trivial. in the aggregate. Era 4: 1995 to present – a little contraction but with an outer limit/boundary 1. “regulation of class activities” 8. Perez v United States (1971): Perez argued that his loan sharking was a local activity that wasn’t within interstate commerce. courts have no power to excise. Wickard case applies here – aggregation theory because if all restaurants were doing the same it would affect interstate commerce i. Congress thinks they can use the commerce clause and equal protection as power sources b. affects interstate commerce i. good argument for instrument. Katzenbach v McClung (1964) Ollie’s BBQ: they wouldn’t serve blacks. where a class of activities is within the reach of the commerce power. cars on a rail/road system a. Heart of Atl Motel v United States (1964): title 2 of the Civil Rights Act “any place of public accommodations” can’t discriminate a. It was constitutional under the commerce clause vi. instrumentalities and channels 3. SC tried to restrain commerce power by placing outer limits on this Congressional power of the commerce power: . Woods v Cloyd Miller: Congress passed law that there would be a national rent control because of a housing shortage after WWII using the commerce/war power a. reach of the federal gov’t was that 50% of the food sales came from out of state (the interstate commerce) a.

The SC 5-4 reasoned that gun possession is not an economic activity that. United States v Lopez: Congress may not use the commerce clause as a justification to criminalize local activity when that activity doesn’t.a. reasoning that to do so would allow Congress to regulate virtually any local activity whose combined impact affected commerce. #2 – instrumentalities of interstate commerce. The SC invalidated a federal law prohibiting possession of a gun in a school zone. divorce. #2: no jurisdictional element in statute to tie firearm possession to interstate commerce iii. such as family law. etc . noneconomic activity a. United States v Lopez (1995) ruled unconstitutional a portion of the Gun-Free School Zones Act that outlawed possession of a gun within 1000 ft of a school b. considered along with other activities nationwide has a substantial impact on interstate commerce b. have a substantial effect on interstate commerce a. when aggregated with similar activity across the country. SC ruled that Congress exceeded the scope of its commerce power by criminalizing what was a purely local. #3: no congressional finding to substantiate effects upon interstate commerce iv. Federalism once again significant 3. Congress exceeded its power in creating the gun free school zone c. #1: law had nothing to do with commerce or any economic enterprise ii. United States v Morrison (2000) struck portion of a federal law that gave civil remedy to victims of violence against women c. Threshold question comes out of case (“is there anything economic going on”): 4 factors/considerations court uses i. #4: link between gun possession and substantial effect on interstate commerce is tenuous 4. #3 – activities that substantially affect interstate commerce d. United States v Morrison: SC 5-4 invalidated a provision of the violence against women act that created a civil cause of action for crimes motivated by gender bias. These 2 cases clearly set the limit on what Congress can regulate 2. SC said the law is invalid because it doesn’t provide for an caseby-case determination that a particular act of gun possession had a direct relationship with interstate commerce i. marriage. even if only involved in intrastate activities iii. refused to aggregate the effects of localized criminal activity. SC said that there are 3 categories of activities Congress may regulate under the commerce power i. P alleged that she was raped by 3 students at V Tech. SC applying Lopez. #1 – use of the channels of interstate commerce ii.

court said that just because Congress finds substantial affects does not make it so 2. including affects on commerce 1. Aggregate theory (Wickard) 1. Take away: court signaled there was an outer limit to using the commerce clause 5. There was a conflict between state/federal laws. Controlled substance act (CSA) is comprehensive regulatory scheme 2. Gonzales v Raich: SC upheld under commerce clause. In contrast to Lopez. a particular instance of the class (citing Perez) iii. Congress did have a rational basis homegrown weed was related to enforcement problems with the CSA 2. Congress went through the same steps/analysis from Lopez i. Bottom line that the VAWA was not constitutional because statute didn’t regulate an activity that substantially affected interstate commerce i. No jurisdictional limitation (neither party moved interstate) c.b. but only whether Congress had a rational basis for so concluding ii. noncommercial growing and use of weed. Congress’ power to proscribe the intrastate. Dissent argues that it had economic impact and even the states were in favor ii. even when done in compliance with state law. here Congress made extensive and detailed findings of the impact of domestic violence upon victims. Court said that home-growing is competing with other commercial grown ii. court need not independently determine whether the activity has a substantial effect on interstate commerce. SC using Perez and Wickard ruled that Congress can regulate intrastate activity that is not commercial if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity i. issue was does federal gov’t have jurisdiction over weed for possession and use a. There was commerce “class of activity” (Perez) 1. but whether the activity has a substantial effect on interstate commerce a. as trivial. Court can’t exclude. No economic activity iii. the court compares Wickard wheat with homegrown weed 6. Class of activities is w/i reach of commerce power 3. Two bright line rules .

also can lease land for minerals – ie offshore drilling b. Commerce Power Today 1. Under the commerce clause Congress can regulate: i. some Lochner-era cases attempted to limit taxing power by finding invalid regulatory motive 2. Can’t apply aggregate theory without economic activity vii. Intrastate economic or commercial activities that substantially affect interstate commerce – (aggregation or class of activities theories) IX. problem arises when primary purpose is regulatory over revenue i. because of this almost always going to be found constitutional b. if they are for regulatory purpose Congress must be already have the ability to regulate it d. Clear if something crossing state line then it’s clear that Congress can regulate it in some way b. Spending power – 2 sources of authority 1. even if wholly intrastate iii. Congress can always spend for enumerated powers [1-18] or . take away – normally there are more then one approach the government can use. necessary and proper incident of expressed powers a. today. Taxing power – Article 1. National Taxing and Spending Powers (general information) a. own wildlife land. Regulatory (police power for states) 1. post offices.a. main purpose is to raise funds a. or might have a regulatory purpose ii. section 8 1. it is legislative branch’s choice which power to use to address specific problem i. including persons and things in interstate commerce. Courts don’t want to second guess the legislative branch c. Taxing: to raise money/generate revenue 1. Proprietary (ownership & sale) 1. which tool to use is the legislative decision 1. Main concept: in addition to the commerce power. State police power – they can regulate for broad range of topics iv. Government has 4 primary powers (both at federal and state level) i. taxation allowed even if it has both regulatory and revenueraising effects 3. Spending: common tactic iii. etc 2. Use of channels (how) of interstate commerce ii. Congress needs a “hook” 2. Taxing and spending authority i. Instrumentalities (what is moving) of interstate commerce. If we want to use aggregate theory in substantial related category there a fundamental threshold question “is there anything economic going on” i. Congress has others – including powers to tax and spend – that provide broad regulatory potential: i. buy/lease land.

Broad for “general welfare” and common defense 2. As long as the purpose of a taxing measure is to raise revenue. The uniformity requirement is not violated if a tax is not uniform in relation to individual persons iii. regulatory motive causes tax to act as a penalty 2. Theory is that if Congress may regulate or even prohibit an activity under its commerce power. If Congress can regulate something under its commerce power. Bailey v Drexel Furniture: purpose of the excise tax was to regulate child labor which Congress couldn’t get at from Dagenhart. The uniformity limit pertains to geographical uniformity. A taxing measure will also be valid if it is a means to achieve a valid regulatory goal of Congress. but requires that all duties. it may tax that activity as a means to achieve its permissible regulatory purpose i. Taxing Power a. But at some point. it certainly may employ the less intrusive means of taxing that activity b. section 8 gives Congress the power to lay and collect taxes. Tax as a means to achieve a valid regulatory goal of Congress a. and excises. article 1. United States v Constantine: disproportionate tax on liquor dealers was a penalty with a purpose to displace state police power . Congress couldn’t because manufacturing was off limits from commerce clause so Congress isn’t allowed a back door ii. A taxing measure passed by Congress can be valid in one of two ways: as a revenue-raising measure. or as a means to achieve a valid regulatory goal of Congress 1. Congress can attach conditions to the spending X. Two ways that a Tax can be valid i. Article 1. and excises be uniform throughout the United States i. section 8 spending for the general welfare: an independent power. Tax as revenue-raiser a. Sixteenth amendment: Congress has power to tax incomes without apportionment b. so they tried to tax it. imposts (for foreign goods was the main source of income for the country for the 1st 70 yrs of the country). The primary purpose was to discourage the use of child labor i. conditional spending allowed if conditions are explicit and reasonably relate to legitimate federal policy 3. not simply adjunct to other enumerated powers a. requiring uniform application (no discrimination) among the several states ii.b. imposts. even if the amount of the tax is oppressive or even destructive iii. it will be upheld. Rule: can’t tax primarily for regulatory purpose unless they had ability to regulate it previously 1.

the issue of what is “for the general welfare” belongs to Congress. the SC will uphold the spending measure so long as the recipient is free to reject the federal money and exercise his rights (in case of individual) or powers (in case of state) i. Helvering v Davis (1937): Social Security case where Congress was trying to prevent people from migrating state to state for better benefits. What is general welfare? 1. no federal tax has been invalidated due to a regulatory motive XI. Is the law voluntary: if the law leaves the recipient with a theoretical choice to accept or reject the “condition” with the money. . the farmers had no choice but to except the terms offered by the government i. Spending Power (Regulation through) a.Since Constantine. This view prevailed iii. When Congress imposes conditions on the receipt of federal money. due to the Depression. SC struck down the regulation as being unconstitutional because it was not voluntary. very broad definition – never has been clearly defined a. Congress has no general police power similar to that of the states 2. not independent powers 2. clause 1: Congress can “pay the debts (both state/federal debts of government) and provide for the common defense and general welfare of the United States…” i. today’s modern view: “spending power of Congress is in addition to the legislative power and not subordinate to it” i. Two competing views as to meaning: 1. Congress does not have any explicit constitutional power to regulate for the general welfare (even though it may do so under the commerce power) 1. Hamiltonian: independent of other enumerated powers. Takeaway: in area of conditional spending it can’t be to coercive d. and the SC will uphold a spending measure if there is any rational basis to support Congress’ conclusion that the law will advance the general welfare ii. The power source: commerce clause to promote agriculture and tax/spend: taxing to raise revenue and subsidies going back to farmers b. the law will be upheld 1. a display of arbitrary power. the discretion belongs to Congress. in other words. Madisonian: limited to carrying out other powers enumerated in Article 1. Congress used the tax/spend as a power source (it was controversial at the time) a. SC said that it invaded state’s rights and was too coercive c. courts don’t want to get involved and take a deferential view 2. United States v Butler (1936): Gov’t contracted with farmers to reduce acreage of crop in exchange for a higher market price a. need only be for the common defense or general welfare a. not an exercise of judgment b. unless the choice is clearly wrong. Section 8. Dissent.

so that if states choose to participate. #2: condition must be unambiguous. no penalty to the state. Power source: tax/spend: tax: national tax on employers.2. Walk Through Analysis i. although the SC has never invalidated a law on the basis that a condition on the receipt of federal funds was unrelated to the general purpose of the federal expenditure. spend: allow you to keep 90% if state has own system ii. it here prevents drunk driving ii. but they are encouraging the state to act ii. Precedent: 4 requirements if Congress wants to conditionally spend federal funds: i. #1: spending must be for the general welfare 1. it is a federal tax and they can keep it and are under no obligation to give any to the states 3. SC said no. it has raised the possibility that conditions on federal grants may be invalid if unrelated to the federal purpose in passing the spending measure 2. It is constitutional because it was optional to the states 1. SC says conditional spending in general is ok because it’s federal money and the states don’t have a right to it a. Is the condition on the receipt of money related to the general purpose of the federal grant (conditional spending) 1. yes. the purpose of the law was to protect the federal treasury and the “condition” place upon the credit here – adoption of a state unemployment compensation system – was legitimately related to that purpose i. Who is acting: Fed. It gives the states incentive to run their own program. Example: federal gas tax. it was distinguished from Butler because none of the similar facts apply here b. Congress wanted states to do it to increase state employment and keep federal administration costs of the program down ii. penalty to employers/industries if the state doesn’t opt in iii. Steward Machin v Davis (1937 era changing): scheme where employers get 90% credit if they pay into state unemployment fund instead of the national fund. Congress had a concern for highway safety – don’t want to encourage people driving over the border to states with a lower age and driving back drunk a. concern and condition) . South Dakota v Dole (1987): a 5% penalty taken from federal highway fund for states that have a lower drinking age. #3: conditions may be illegitimate if unrelated to the federal interest in the particular project or program (must be related. they do so knowingly and cognizant of the consequences of their participation iii. Issue: did the law coerce the state governments to adopt unemployment compensation laws in violation of the 10th amendment a.

they contain all of the details of the agreement between the countries and have the force of law as soon as they are ratified by the senate (ie. Summary of article 1. here the 21 amendment b. or override constitutional requirements (ie. US and Canada came up with an agreement over regulations. for the general welfare 2. not barred by another constitutional provision XII. drunk driving and 5% penalty iv. section 2m clause 2: the president has the power to enter into treaties with other countries. For general welfare – not clearly defined 1. etc. section 8 power i. There are 2 kinds of treaties: self-executing. Inducement might become so coercive as to result in compulsion – to be coercive it probably would have to approach a 30-50% penalty c. and non-self-executing 1. The SC also ruled that the 10th amendment is not a limitation on the treaty power of Congress iii. conditions are reasonably related to the federal interest in the policy or program (most important there has to be so kind of relationship) 4. SC upheld the federal Migratory Bird Treaty Act 2. non-self-executing: need to be implemented by legislation passed by Congress. holding: the conditional spending here was ok because the states can opt out c. A treaty must be ratified by 2/3 of the senate i. stamps. courts should defer to legislative judgment iii. conditions are unambiguously stated 3. Missouri v Holland: concern of the harvest of migratory birds. They don’t have the force of law until the implementing legislation is passed ii.08 i. Independent of the other article 1 powers ii. the constitution is the supreme law of the land. Treaties: under article 2. Congress used this same scheme to reduce the blood/alcohol level to . Congress may pass legislation necessary and proper for the implementation of a treaty 3. Rule: a treat can’t violate the constitutional rights of individuals. Issue: can there be a treaty that is entered into over state rights to regulate 1. The SC rules that a treaty may confer on Congress the power to legislate in an area over which it otherwise has no power (ie the state right). treaty can’t “trump” the constitution) . Other Powers (foreign affairs and treaties) a. self-executing: do not need implementing legislation. Conditional spending allowed it: 1. #4: other constitutional provisions may bar the conditional spending 1. Reid v Convert: SC reversed murder convictions of US military dependents for denial of jury trials 1. missle reduction) 2.1.

States lost a lot of power. nor prohibited by it to the States. SC upheld saying it was ok to apply FLSA to state employees 1. State immunity from federal regulations i. This is an important check XIII. or to the people” i. Illustrated by SC’s approach in Gibbons v Ogden 1. Tenth Amendment – intergovernmental immunities (co-sovereignty) a. . Terminology: 10th amendment and state sovereignty are strongly related – don’t confuse with sovereign immunity (11th amendment) b. key: that the state is not being singled out e. so long as Congress acts w/I scope of commerce power. 10th amendment serves as a source of power for the states (state’s police power) and as a defense against congressional action (a federal law impairs the ability of a state to provide adequate police services) ii. NY v US (1946): Federal excise tax on carbonated beverages. Early Case i. are reserved to the States respectively. not just police power ii. NY’s sale of mineral bottled water was taxed. and overtime compensation for state police. Rule: when the states are acting as a private enterprise like an entrepreneur the tax on them sis allowed 2. NY said they were a sovereign a.a. Mass had state police planes and said they didn’t have to pay the tax. From 1937 – to early 1990s i. National League of Cities v Usery (1976): issue involved federal regulations of wages. 10th amendment is not a limit 2. the political process is the check c. State immunity from federal tax 1. Need to ask “who is being regulated” – the states are not being singled out ii. State paying tax for using the federal facility and the tax is going back to provide facility upkeep 1. Court became more protective of state sovereignty – zone of protected activities d. here it is the states and others that are being regulated a. Massachusetts v US (1978): federal registration tax on all civil aircraft imposed to pay part of the cost of federal air navigation. Key early case was US v Darby (1941): “the 10th amendment states but a truism…” f. SC upheld tax a. Lochner era – 1890s – mid-1930s i. the SC has interpreted the 10th amendment to mean that there are certain aspects of sovereignty that a state must have to function as a state and to occupy its proper place in a federal system 1. “The powers not delegated to the United States by the Constitution. Maryland v Wirtz (1968): Issue: was overtime under the fair labor standard act. hrs. Rule: uniform tax for private and public is allowed i.

federal interest in the issues – and court does the balancing a. SC said forcing states and municipalities to pay min wage would “directly displace the states’ freedom to structure integral operations in areas of traditional governmental functions” 2. proprietary a. Congress may not regulate the wages and hrs set by a state as an employer a. acting within the scope of the commerce power.1. government vs. historical view 3. Garcia v San Antonio Metro Transit Auth (1985): transit authority said it was exempt from min-wage and overtime requirements of the fair labor standard act. non-historical view b. SC held: overruled Wirtz and ruled that while general subject matter of wages and hrs is within scope of the commerce power. Under Garcia. State interests are protected by procedural safeguards in federal system. regulates both private and gov’t actors c. 2 rules from the case i. a traditional gov’t function is now being operated by private sector 2. focused on traditional governmental functions test ii. Here the regulation applies to both private and governmental actors 1. Garcia is the current analysis for cases in which Congress. if it affects only states – then do balancing test and federal court is the check of legislative power ii. the SC is extremely deferential to any congressional action which regulates both states and private entities i. court recounted efforts to define what are traditional governmental functions 1. J. example: TX privatized prisons. Blackman say approach in National League wasn’t workable anymore i. not by judicially-created limitations on federal power. SC uses a balancing approach – state sovereignty vs. SC held: overruled National League’s balancing test and in its place the SC aid that the states were protected by their participation in the national political process (ie. if regulation affects state and others – use Garcia the states are SOL and they have to rely on the political process to look out for their interests . Important to see if there is a private sector equivalent iii. Concern with this approach that states have different regional differences and the longer US Senators and Representatives are in office they develop more national prospective and lose track of what’s going in their home state d. Congress) for relief a. and must resort to the political process (ie.

Government tried to distinguish NY v US: there.g. Precedent a. executive. National League. Printz v United States (1997): Brady bill required chief law enforcement officers (CLEO) to do background checks when people apply to get a handgun. it compelled states to take responsibility for implementing a federal regulatory program ii. not states b. Distinguished from Wirtz. Early 1990s to present (Rehnquist SC used several cases to reassert the place of the 10th amendment) Commandeering Cases i. Doesn’t mean state has to comply – when they are being forced to implement a federal statute . In addition. No “executive-commandeering statutes” in more recent history 2. The federal gov’t doesn’t have the authority to implement a federal law: called commandeering 1. Rule: Congress can’t commandeer the legislative. NY v United States (1992): Congress required all 50 states to have compacts to see which state would have to host low-level radioactive waste. NY lost and when they couldn’t find a location in the state their were told the state would have to “take title” and liability for the waste 1. take title provisions was unconstitutional as that overstepped the boundary btw federal and state authority i. Do precedents allow federal government to commandeer state officials to enforce federal laws? b. Structure a. History a. here the law regulated only state governments b. states were forced to make laws. SC held: invalidated the Brady Bill – Congress’ commandeering of state executive officers violated the system of dual sovereignty mandated by the structure of the Constitution 5. No evidence to support imposing federal enforcement responsibilities on states w/o their consent b. and Garcia because these laws both states and private entities were regulated 1. or judicial branches of state governments a. SC held: invalidated part of the congressional commerce clause law which required certain states title/liability a. SC said that the federal law commandeered state legislative processes by directly forcing them to enact and enforce a federal regulatory program i. In Printz it was the executive branch that was commandeered i. Constitution gives Congress the power to regulate individuals. the president is to enforce federal laws – “take care to faithfully execute the laws” 3. here local officials required to do background checks 4.

It is constitutional as long as Congress has a power source a. Commandeering is forcing the states to do it and not compensating them for it (ie Bradley handgun bill) b. Distinguished NY and Printz (the commandeering cases): this law didn’t require states to enact laws or regulations. Example: Bradley Bill as a condition of receiving the money the states are required to conduct the background checks XIV. The lists are instrumentality (what’s moving across state lines) v. and the law is within the scope of Congress’ commerce power 1. Can Congress just regulate health care a. Reno v Condon (2000): SC upheld drivers protection act which said the DMV wasn’t allow to disclose personal information to 3rd party telemarketing. Separation of Power (PRINTED 2-30) a. Nor did it require state officials to assist in the enforcement of federal statutes regulating private individuals 2. and that the powers of each branch will act as a check on the others (or a reining in of excessive power) . New funding source or excise tax 1. The constitution envisions that the powers of the federal branches will be separated to a substantial degree. No 10th amendment violation because law simply prohibited states from acting. 2 ways that Congress can force the programs 1. 1st you need to see if Congress has the regulatory power over it i. closest thing to it is social security iv. Congress forcing the states to implement using the tax/spend clause for the “general welfare” and also to protect those who are uninsured “the people” end up paying for it 2. pay the states 2. Commandeering is different from federal government forcing states to comply with a federal law (ie wage/min hrs regulations in the private sector) i. funding can’t be coercive iii. or enforce federal statutes – just the opposite not to admin a program but to not sell the list a. it was not a mandate to engage in some conduct 3. Here it was the commerce clause – lists were being bought and sold all over the country i. to use the commerce clause ii. Example: health care – the power source comes from the tax/spend clause or the commerce clause 1. Reasoning of SC was that drivers’ info is an article of commerce. Condition grants – “congress may attach conditions on receipt of federal funds” a. General overview i.b. Test used: per se/categorical – Congress can lawfully pay the state (excise tax) i.

“line item veto” is unconstitutional Appointing officers 1. what is the scope of this power? a. iii. iv. etc) must be appointed by the President i. problems may arise when delegated powers overlap or conflict. Functionalism: allows more blending of powers in the interest of effective administration. example (ie healthcare Congress wrote the law. Allows a little bit of blending as long as it doesn’t go too far c. No definitive answer. separation is horizontal not vertical (federal and state) two approaches to dealing with separation of powers problems: 1. general rule: president has power to appoint a. When the SC upholds an act it uses this approach and says it’s constitutional b. cabinet member. when the SC shoots down an act of Congress/President it uses this approach 2. key is powers should be effectively separated. but there is an outer limit b. “legislative veto” is unconstitutional c. Then can turn it over to the executive to implement 1. enumeration of powers 2. Congress can’t delegate true legislative powers – it has to set the laws/policy i. there is no blending of power from one to another c. delegation of rulemaking power to agencies a. formalism: strict separation of the roles and duties of each 3 branch as specified in the Constitution – “watertight compartment” theory a. Youngstown illustrates differing theories and is usually starting point for analysis Legislative delegation 1. permitted so long as Congress articulates an “intelligible principle” to guide agency and limit agency discretion 2. rigid.ii. there are about 2000 people appointed by President within the federal government b. basic rule: if principle level (SC judge. No bright line boundaries. delegation or reservation of “lawmaking power” a. and essential checks and balances are preserved a. SC has resolved in different ways i. v. up to the executive to carry out) ii. article II a. Based on the theory of checks and balances Executive power – 1. and when one branch exceeds its authority 2. vesting of executive power – carrying out the laws b. 1. federal judge. executive can’t be delegated to in order to create law b. lower level” inferior officers Congress can appoint . inflexible b.

#2 determine whether the challenge to the law is based on a specific provision of the Constitution which sets forth required rules or procedures a. Implied powers of the branches of the federal government 1. with advice and consent of Senate i. example: enumerated power for Congress to tax. make treaties with advice and consent of Senate b. Main enumerated powers are to execute the laws. appoint officers. Article II 1. act as commander-in-chief. doing drugs) 2. a balancing approach is called for a. clause 2 (foreign relations) a. and if the intrusion is too great b. Appoint. it must be presented to the president for signature. section 2. and coin money give rise to an implied power to charter a national bank ix. If joint congress resolution passed which is supposed to operate as law without presentation its in violation of the presentation requirement in section 7 3. if provision exists.2. Removing officers 1. Each branch of government has set powers from the Constitution viii. on the side of the acting government – identify the constitutional power asserted as a basis for the action taken b. example: Article 1 section 7 before bill becomes law. Executive Power i. enter into treaties. #1 Determine which branch of the federal government is acting and which branch is being affected by the law a. in some instances. the implied powers are necessary to carry out the enumerated powers a. Genera rule: President appoints and has removal power vii. section 1. power may be delegated to President. on the affected branch side – what power is being adversely affected. Cannot delegate appointment power to itself vi. clause 1: vesting of executive power – “the executive power shall be vested in a president…” a. Congress can limit power (ie. #3 if no specific constitutional provision applies. Enumerated powers of the branches of the federal government 1. who is doing what to whom 2. veto congressional acts presented for signature. apply rule from Constitution b. spend. the SC recognizes certain unenumerated (or implied) powers of each branch 2. in addition to those powers specifically listed in the Constitution. or department heads b. judiciary. and grant pardons for federal offenses ii. but Congress can decide who gets to appoint “inferior” officers a. framers put it first on purpose 2. Ambassadors . Steps for doing separation of power analysis: 1.

Other officers not otherwise provided for c. Zone 1: expressly or impliedly authorized by Congress i. Zone 2: those undertaken in the absence of congressional grant or denial of authority: “twilight zone” (the president acting alone) i. No act of congress authorized in the labor mgmt relations act of 1947 congress rejected amendment for seizures in cases of emergency b. the judiciary. SC will have to balance the competing interests of the president and Congress c. common problem is what are the president powers during war time c. or heads of department 3. the opinion divides presidential actions into 3 categories or zones: (the zones of power) a. Presidential action affecting “congressional” powers (internal matters: domestic lawmaking) i. Must rely on presidential powers minus constitutional powers of congress ii. President relies upon independent presidential powers. Presidential authority is “at its maximum/zenith” because it includes all the authority of the president plus all that Congress has delegated ii. Majority opinion – authority for seizure. Zone 3: actions that are “incompatible with the expressed or implied will of congress…” (lowest zone – the president acting contrary to the will of Congress) i. Jackson Concur Opinion (more influential of the opinions).ii. The owners challenged that president didn’t have the authority (like a taking case from prop 2) 1. Justices of the SC iii. Analysis using Jackson opinion . SC will be very deferential to presidential action b. Congressional inaction may invite this sort of action iii. Congress may have concurrent power ii. Power to seize not implied by express delegation 2. either i. Not authorized by constitution. Note important limit on appointment power: Congress may vest power to appoint “inferior” officers in president. to avert the effects of a strike by the steelworkers union. must derive from the constitution or an at of congress (president thinks the power comes from article 2 under the commander-in-chief or as chief executive power) a. if it existed. Youngstown Steet & Tube v Sawyer: during the Korean War. SC will scrutinize the presidential action very carefully 3. President Truman issued an executive order directing sec of commerce Sawyer to seize and operate most of the nation’s steel mills.

clearly illustrates that the president has broad discretion to act in foreign relations 3. second issue: authority to suspend. by executive order. first issue: executive order to implement an agreement between the US and Iran involved the release of frozen assets a. where congress has consented to president’s action. and the action was a necessary incident to resolving a foreign policy dispute. The president had previously asked for the power to seize and congress rejected it i. congressional consent to presidential action may create an inference of congressional authorization iii.a. Dames & Moore v Regan: effort to resolve the Iran hostage situation and an executive order to suspend all claims. But congress can grant emergency powers as needed b. and ordered transfer of assets to be paid out through claims tribunal. Analysis: federal law gave president the power i. Zone 2: there was a history of congressional consent in this sort of presidential action 1. In Zone 1. claims against the foreign government a. Medellin v Texas: M. But congress implicitly approved claims settlement by executive agreement in another federal law ii. by statute or resolution. Dames already had a judgment for work that did as a contractor and filed suit 1. The president was in the lowest zone because Congress didn’t delegate the power. when the president negotiates the claims the court thinks it’s zone 2 ii. nullify judgments. M received a ruling from the International Court of Justice (ICJ) that US had violated the Vienna Convention and M’s conviction must be reconsidered . a Mexican was convicted and sentenced to death for a gang rape and murder without being informed of his right under the Vienna Convention to seek assistance from Mexican diplomats. authorize the president to take certain action a. even without specific authorization. it is supported “by the strongest of presumptions and the widest latitude of judicial interpretation…” 1. challenger bears heavy burden of persuasion 2. Thus the seizure was exercise of authority without law and the president doesn’t have the authority to seize private property ii. Analysis: no federal law expressly on point i. SC was not prepared to say president lacked the power to act b. the SC ruled that the presidents actions nullifying attachments and ordering the transfer of assets were authorized by a specific congressional statute i. takeaway: the Congress may.

by using trying to use an authority to make co-sovereign orders on new trials which he didn’t have 1. main concept: In the areas of war and foreign powers (2 big powers from president). congress – power to declare war 2. General overview 1. treaties require Senate ratification by 2/3 vote and sometimes implementing legislation b. Presidential action affecting “congressional” powers (external matters: foreign affairs and war) i. are actions under the war powers justiciable or are these political questions? d. the President was acting in zone 3. typically with only one other country 4. Youngstown b. Provision of the Vienna Convention of Consular Relations and the ICJ’s decision are not binding sources of domestic law in the absence of implementing legislation a. the Constitution creates a tension between the legislative and executive branches – tension the Court has never clearly resolved: a.1. war powers a. executive agreements do not i. Tension: president – power over military. Primary an executive branch issue 3. power president was using was foreign affairs (which is broad internationally but narrow domestically where he was trying to apply it ii. President order of a memo that state courts must adhere to the ICJ’s decision regarding consular notice and retry anyone who didn’t receive notice i. Curtiss-Wright ii. SC has never declared a winner c. nature of foreign powers b. no longstanding practice of Congressional consent per Dames/Moore evident in this case d. nature of foreign affairs power: a. Congress power to declare war is a check on the executive . Thus. treaties versus executive agreements: a. constitution distributes between Congress and President i. More clear then war powers i. President has a lot of power ii. it’s a non self-executing treaty and Congress must pass law to implement it – which it never did i. This memo was held to be invalid b. debate is over source and scope of power i. inherent in sovereign and plenary. treaties versus executive agreements c. derived from Constitution and limited.

as part of the government’s power to deal in foreign affairs. Article II. Non-self-executing: need to be implemented by legislation passed by Congress i. Some of the presidential powers in foreign affairs are broader than just making treaties 1. very little guidance from the SC – usually very deferential to Congress and President c. no explicit textual authority for executive agreements in the Constitution – see Dames/Moore a. self-executing: do not need implementing legislation i. President has power as the commander-in-chief b. do not depend on enumeration in the Constitution iii. two kinds of treaties a. use of executive agreements has far outpaced use of treaties . They do not have the force of law until implementing legislation is passed (see Medellin) 3. together with the Constitution and federal statute 2. Foreign affairs powers 1. clause 2: President makes treaties with advice and consent of Senate (must be ratified by Senate with 2/3 vote) a. it is justified under Congress’ inherent powers to deal in foreign affairs 3. The president was in zone 1 because it was an express authorization to order the embargo i. Article VI. congress may delegate to the president the power to act in foreign affairs 2. US v Curtiss-Wright Export Co: Congress issued a joint resolution authorizing the president to place an embargo on the sale of arms to countries involved in armed conflict in South America a. such a delegation need not be based in a specific constitutional provision. Foreign powers inhere in the sovereign. congress may vest discretion in the president to implement congressional policy on foreign nations a. Courts usually rule questions in this area are nonjusticiable political questions (ie. The president as exclusive power to act as the sole agent of the federal government (one voice for the nation) 2. was it a proper war) ii. clause 2 makes treaties made under authority of US supreme law. since early-1900s. Treaties and executive agreements 1.ii. section 2. Congress must often give president a degree of discretion different from domestic relations ii. they contain all the details of the agreement between the countries and have to force of law as soon as they are ratified by the Senate b.

b. an executive agreement is an agreement between the president and the chief executive of another country i. no senate ratification is needed ii. inherent power of president as head of the executive branch with power to deal in foreign affairs iv. War powers 1. note the variety of constitutional provisions that disperse war powers between legislative and executive branches (ie. shared authority) 2. a lot of questions, no definitive answers a. what is war, who gets to declare war, who gets to commit troops to war i. are any of these questions justiciable 3. under article 1, section 8, clause 11 congress has the power to declare war, clause 12 raise armies and clause 13 navies, and provide for the national defense a. when used together with the necessary and proper clause congress may exercise this power in peacetime and wartime b. Article II, section 2, clause 1: president is commander-in-chief of army, navy, and militia 4. SC has rarely spoken about these issues: The Prize Cases (1862) a. President Lincoln ordered a blockade against secessionist states (start of the Civil War: but before a declared war) i. No declaration of war by Congress yet ii. SC upheld blockade 1. President may not declare war 2. But state of war may exist with or without a declaration 3. Where war is waged against the United States, President has a duty to defend even without congressional action b. Factors that might be considered in deciding whether state of war exists i. Facts of the conflict ii. Actions of other nations in joining or declaring neutrality iii. Congressional action authorizing (or not authorizing?) the use of force 5. Declaring war a. Though President cannot “declare” war, does this matter? Only 6 declared wars in Nation’s history i. Does it matter whether there is a declaration of war if President has committed troops to foreign hostilities or actions? b. What does it take to have a “declaration” of war? i. Joint resolution by Congress ii. “Congress exclusively possesses the constitutional power to initiate war, whether declared or undeclared, public or private…”

6. Commitment of troops: a. Commander-in-Chief power entails power to commit troops to hostilities, or to “surge” additional troops i. Long, well-recognized history of Presidents using power, even without congressional approval 1. Must let congress know within 48 hrs, normally presidents are good with this ii. Congress has recognized President’s power to do so under the War Powers Resolution of 1973 (questionable constitutionality as it conflicts with the commander-in-chief powers) 1. Purports to impose on President reporting requirement and troop withdrawal requirement in the event Congress does not approve; 2. Troops can be in combat for 60 days without a declaration of war or a joint resolution a. Goal is for short term or get approval of congress b. Presidents are less compliant with this 7. Presidents have complied with reporting, but have ignored troop withdrawal 8. Are actions under the war powers justiciable? See Campbell v. Clinton (2000): a. In two words, generally no i. Either a political question; ii. Or no standing to challenge 9. Campbell v. Clinton: a few congressman filed suit against President Clinton that he violated the War Powers Resolution during a NATO air strike. There was no formal declaration of war or a joint resolution from Congress. The conflict lasted for 79 days, 19 more then the allowed 60 under the WPR a. Court said they had no standing because that lacked injuries and damages (if they were able to show that they had children in war it might have been enough for possible injury) i. Judge said there was a political question and no criteria for determining was a war actually is ii. Thus the court dismissed for being moot b. The president was in zone 1 (enough for zone 1, 1 ½ : i. Congress agreed to funding ii. Some elements of foreign affairs 1. WPR – intent of Congress up until 60 days iii. NATO treaty 1. if one member nation attacked the others have to come to their aid e. Individual rights and the war on terrorism

i. The SC has jurisdiction under federal habeas corpus statutes to review the detentions of persons, whether citizens or foreign nationals, detained by the government in the war on terrorism ii. Detention of US citizen enemy combatants (EC term created because if they were prisoners of war they can’t be tortured, get red cross visits, etc) 1. a US citizen who is detained as an enemy combatant is entitled to notice of the charges against him and some sort of hearing to contest those charges with the assistance of counsel 2. Hamdi v Rumsfeld: a detention of an enemy combatant of US citizen, captured of foreign battlefield and alleged to be fighting for the enemy. He was held at Guantanamo Bay and then transferred to a military base in the US and was not able to bring HC writ because he wasn’t allowed access to attorney, and never told of the charges against him. His father filed the writ for him a. Plurality said that even when the detention of enemy combatants is legally authorized (authorization for use of military force after 9/11) a court must decide what process is due a citizen who challenges his enemy combatant status i. They applied the balancing test from Matthews v Eldridge to decide what is constitutionality required, opting for a flexible due process approach 1. Test (balance of individual interest in liberty vs government interest in national security; 3rd factor benefit of additional government safeguards) - citizen detainee seeking to challenge enemy combatant status must receive notice of factual basis for classification, and fair opportunity to rebut facts before a neutral decision maker – these are the essential requirements of procedural due process 2. process might be tailored for circumstances, like admission of hearsay and presumption in favor of government ii. the time frame for detention is not indefinitely but for the duration of the conflict b. Majority said to suspend writ only when rebellion, invasion (narrower in time of war) c. Basically a citizen gets his day in court (due process) i. Military tribunal might meet requisite standards –has to be fair could be court or military tribunal ii. Right to counsel exists and notice of charges so they have a fair opportunity to rebut the charges d. Dissent – when citizen is involved the options are to suspend HC or charge and try for treason i. Since the writ here was not suspended he should have been tried for treason – reason they didn’t was probably they didn’t have the evidence, need 2 witnesses

ii. Thomas dissent – detention was within federal government’s war powers e. Takeaway – the case is excellent example of judicial review i. Here judicial review for executive branch earlier cases in outline dealt with review for legislative branch iii. Restrictions on military commissions used to try enemy combatants 1. military commissions used to try enemy combatants at Guantanamo Bay must comply with federal law and principles of international law 2. Hamdan v Rumfeld: non US-citizen who claimed to be Bin Laden’s former driver was held in Guantanamo Bay, is he entitled to due process and to what level. The Detainee Treatment Act (DTA) was established to determine if prisoners are in fact enemy combatants a. SC held that DTA did not strip courts of HC as to pending cases at the time Congress passed the Act (Hamdan’s already had writ pending) b. SC then held Code of Military Justice (UCMJ) and the Authorization for the use of Military force (AUMF), and the DTA merely acknowledge presidential authority to convene military commissions when justified under the Constitution and law i. The commission’s structure and procedure violate the UCMJ because precluded D from attorney but just a representative, he can be excluded from parts of the hearing, can’t see all of the evidence against him (some classified), and government can bring evidence that was received by torture interrogations ii. Thus the SC held the plan to try detainees before military commissions because those tribunals were unauthorized by federal statute and violated international law 1. the detainees aren’t given full due process to determine if they are enemy combatants iii. In addition, SC held procedural defects regarding exclusion of accused and admission of evidence: 1. UCMJ requires commission procedures to be “uniform insofar as practicable” with procedures used by military court martial 2. president’s determination that uniformity not practicable not sufficiently justified iv. Military commission not a “regularly constituted court” as required by Geneva Convention, Common Article 3 1. article 3 does not require all the protections of a civilian court or a court martial, but it does require some protections missing form the procedures used in Hamdan’s military commission (some due process) iv. Alien detainees imprisoned at Guantanamo Bay have a right to challenge their detention in US courts

2) whether Congress provided an adequate substitute for HC b. Thus MCA must be an adequate substitution as HC (issue 2) c. complete military/civil control. using the 3 factors in determining the geographical reach of the suspension clause i. if they want to suspend HC – MCA not an adequate substitution d. no opportunity for detainee to supplement the record on review with exculpatory evidence (evidence to prove D’s innocence) 2. counsel not provided to detainees. citizenship of detainee and adequacy of process used to determine that status ii. US has total military and civilian control over the military base. standing) but not factual findings 1. Congressional Action affecting “Presidential” Powers i. Bay was in indef lease.Bay. The 2 issues are 1) does the suspension clause guarantee the availability of HC to non-citizens held at G. much government evidence classified. SC concludes that the provision of the MCA barring habeas review in federal courts in unconstitutional and alien detainees are entitled to right of HC to challenge the legality of their detention i. where the US exercises complete jurisdiction and control. government evidence accorded presumption of validity. Delegation of rulemaking power . practical obstacles inherent in resolving detainee’s entitlement to writ 1.significant procedural limitations in hearings. MCA unconstitutional because it denied federal courts jurisdiction to hear habeas actions that were pending at the time of its enactment f. torture (coerced) testimony/evidence is admissible and deemed credible i. G. nature of the sites where apprehension and detention took place iii. 2) (Adequate Sub) Reasoning not adequate . 1) SC rejected the government’s “formal sovereignty-based test” for determining if the writ extends off-shore. SC held that the “cases before us lack any precise parallel” and that the suspension clause has full effect at G. which purpose was to strip all US courts of HC jurisdiction over Guantanamo Bay detainees a. US sovereignty for all intensive purpose a US territory 2. Bay a. Boumediene v Bush: Congress response to Hamdan ruling by enacting Military Commissions Act (MCA).1. issue with judicial review – limited to DC circuit of CA but the scope of review limited to looking at just questions of law (ie.

other officers in the executive branch. INS v Chadha: federal statute that authorizes attorney general to grant exceptions to deportation on a case by case basis when there is a . SC continues to recognize non-delegation doctrine but has not found any federal law unconstitutional upon this ground since 1936 2. Implied delegation: regulations valid if reasonable iii.1. Congress has to set the law/statutes and the principles to guide execution of them b. or manifestly contrary to the statute” ii. the power to set rules and regulations to implement congressional goals. Enabling law stated an “intelligible principle” 1. Express delegation: regulations valid unless “arbitrary. EPA shall set pollution standard with public health as the #1 concern 3. Congress can’t delegate it’s true law making ability i. bicameral means that both the house and senate must pass the bill b. Chevron v National Resource Council (1984) i. invalidated federal laws on the ground that they improperly delegated legislative power to the executive branch c. Whitman v American Trucking (2001) i. it must meet both the bicameral and presentment requirements of article 1. Congress has stated the objective of the law “intelligible principle” c. whenever Congress passes a law. Congress has provided specific standards for the executive branch official or independent commission to follow (standard to measure them against) ii. capricious. non-delegation doctrine: a. Truck owners argued the clear air act is unconstitutional delegation to the EPA ii. or an independent regulatory commission. Congress may delegate to the President. Federal courts should defer to the admin agency as long as the delegation is reasonable (check/limitation on fed) 4. section 7 a. Legislative delegation and line item vetoes 1. Current law a. Validity of agency regulations a. presentment means that the bill must be presented to the president for signature 2. As a general matter. or takes action that is the equivalent of passing a law. Congress has not attempted to give away some non-delegable power (ie declare war) b. Delegation valid if a. Schefhter Poultry (1935). Intelligible principle is the minimum that Congress is required to do 2.

The legislative veto was not accomplished using the constitutionally-required procedure and was unconstitutional i. but is silent as to amendment or repeal i. it is unconstitutional for Congress to give president the power to cancel an item of new direct spending after the president has already signed the spending measure into law (such a line item veto violates the presentment clause: line item is a pork barrel/earmark) a. Dissent – concern that if doesn’t allow for reining in of the executive branch (incorrect reasoning) i. The house voted to deport Chadha a. oversight authority after law passed 3. Clinton v NY: constitutional text expressly authorizes president to play a role in exacting statutes. pass new statute/rescind/amend which is passed properly 2. By giving the president the “unilateral power to change the text of duly enacted statutes” Congress has effectively sought to alter the procedures (presentment) set out in the Constitution 1.hardship. which allows Congress to override veto by 2/3 vote (the check) iii. can’t veto critical functions of government 3. harm national interests ii. it authorizes the president to create a law (leg power) that was not voted on by either house or presented to the president for signature (separation of power issue) . withhold funds 3. The house acted in a legislative capacity when it passed this resolution: it altered Chadha’s legal status i. Therefore. There were 3 limitations (the intelligible principle to stay within the limits) 1. a formalistic interpretation c. the line item veto is unconstitutional 1. ie senate confirmation) 1. If congress is not happy that can 1. the president has the option to veto the bill and send it back. reduce federal deficit 2. Problem was no bicameral (only 4 cases where one house allowed to act. When congress acts to implement policy it must follow the procedures prescribed in Constitution (bicameral passage/presentment) b. the concern is separation of powers 2. Zone of power: zone 1 because Constitution authorizes to sign/veto bill and the statute authorized him to line item veto (written by Congress) iv. It also allows either house or senate to override the attorney general and force deportation.

for cause: only can be removed for specific reasons a. court. ie. 2 categories of employees (officers appointed) 1. Myers v US: president’s executive power includes the power to remove executive officers without senate approval b.iii.conviction of felony. Today this would be functionalistic approach 2. As to officers of these agencies. Congress can specify term limits and provide that they may only be terminated for cause iii. Buckley v Valeo: federal election campaign act directed that senate president pro tem and house speaker would each appoint 2 members of the FEC 1. Congress may vest appointment of inferior officers in the president. at will: vast majority – serve at the pleasure of the president and can be removed for any reason (outside of civil rights – ie. Appointment and Removal of Officers 1. section 2. dept head) c. Appointment (one of the 4 presidential powers) a. ambassadors. this delegation of appointment authority was invalid: a. sex. the theory is that they are buffered from political influences ii. gender) 2. Appointments clause article 1. Humphrey’s Executor v US: congress can create agencies with quasi-legislative or quasi-judicial functions i. etc b. the courts. matters if they were inferior of principal . and all other officers whose appointment are not provided in the Constitution (principal officers) ii. appointments must be made according to the appointments clause b. President nominates and with advice and consent of Senate appoints. clause 2 i. this goes against separate of powers 2. nothing in appointments clause allows house or senate appointments (ie president pro tem is not on the list of President. majority are commissioners iv. Issue is if president can appoint can president remove unilaterally 1. SC justices. Removal a. or heads of departments iii. May require that officers act independent of executive control ii. Constitution is silent i. substance abuse.

3 reasons a. and jurisdiction is limited by instructions from appointing judicial officers d. Congress authorized comptroller general who gave president recommendations where to cut the budget across the board. No. Issue: is independent counsel an inferior officer – Yes. dept heads. Is this person subject to senate confirmation? NO – important clue.a. generally the person who can appoint can remove (exception is Morrison) vi. Congress power to remove was like an legislative veto 2. The appointment of this position was picked between three people selected by Congress. the delegation was unconstitutional iii. The only way that congress may remove an executive officer by impeachment ii. Morrison v Olson: an act for independent counsel appointment. intrusion of Congress into presidential power a. subordinate to attorney general b. if yes. Congress may not have removal power over an executive official b. Issue: could Congress delegate executive functions to a government officer who is removable by Congress a. Appointment clause allows certain appointments (inferior officers) by president. 1st – under the act the counsel can be removed by Attorney General “for cause” ii. Thus. Broadly speaking there is supervisory authority in the exe branch because he can be removed by the Attorney general 1. normally a principal officer 2. overall it was a separation of power issue. which starts in with the Attorney General (exe branch) who makes a recommendation. with a specific function c. two issues to look for was appointee inferior and whether Congress has vested appointment in appropriate person (pres or dept head/court) v. Comp Gen worked for the president (executive function across the board budget cuts) 1. but could be removed by Congress. or courts. 2nd – counsel has relatively limited powers ii. the appointment comes from Special Division of the CA (court). Bowsher v Synar: Budget reconciliation act to reduce the federal deficit. 3rd – counsel is appointed for a limited tenure. Issue: did limiting authority to remove only “for cause” interfere with presidential power .

this is a functionalistic approach – court recognizes what Congress is trying to do a. back to exe where he can be removed for cause (under the theory if at will they would be removed if they were closing in on the president. Congress did not attempt to increase it’s power at expense of President iii. SC said it was unconstitutional – it stripped the president of power. Board was a sub-agency within the SEC and appointments made by SEC and removal vested in SEC 1. Congress was trying to reduce the influence by the president (need a buffer) 3. Removal restrictions imposed by Congress will be valid unless they unduly interfere with an essential attribute of the Presidency a.Scooter Libby) vii. Dissent – limiting of the president power 6. The majority picks up on dissent from Morrison from Scalia g. the president doesn’t have appointment/removal power 3. President’s need to control independent counsel not so central to functioning of exe branch that President must be able to terminate at will 4. Here the removal power was permitted b. Executive Privilege and Immunity i. Free Enterprise Fund v Public Company Accounting: Congress oversight accounting board (for cause employees) to oversee accounting problems. then court. Good reason for counsel having a degree of independence c. Separation of Power: was the scheme Constitutional a. today if evidence that a crime was committed the attorney general will apt a special prosecutor and they will conduct an investigation and prosecute (ie. General Information . The process starts in exe. No. board doing the exe work – oversight/prosecuting accounting firms 2. and the president could protect himself by firing the counsel – need the buffer) 5. Did not violate the separation of power doc because it doesn’t interfere with the functions of exe branch ii.a.

Exam: need to be a specific as possible about the precise reason for the assertion of executive privilege and about the need for disclosure 3. the president is absolutely immune from civil liability for executive actions taken while president b. documents. the issue of criminal liability is unsettled. it is a presumptive privilege (the burden is on the party seeking disclosure to justify the production of the materials) which may be overridden by a sufficiently weighty reason for disclosure 2. court has not decided issue of criminal immunity b. Executive Privilege 1. if so. theory don’t want the president looking over his shoulder when making decisions c. bribery. qualified privilege is strong for national security. absolute immunity from civil damages liability for official acts as president i. military secrets. etc) b. presidential immunity a.1. Not absolute. president may be impeached for treason. SC held that there was a qualified executive privilege as a function of separation of powers i. but qualified. US v Nixon: Watergate and the cover up and subpoena to turn over the tapes which pertained to the burglary. or other high crimes or misdemeanors (no set definition on high crimes) a. the SC decides whether executive privilege and. etc but breaks down when crimes are committed 2. privilege is based on the need of the president to be able to conduct the affairs of office free from excessive public scrutiny a. 1) under Marbury. Checks and balances are inherent in the constitutional structure requiring some degree of secrecy (military. Nixon claimed an absolute privilege a. executive privilege means that a president has a presumptive (qualified) right to refuse to disclose materials. in addition. no immunity for actions taken prior to becoming president ii. debate is over source and scope of power i. Executive privilege: an inherent power a. or communications that are generated during that president’s tenure in office a. privilege may have to yield to other government interests 3. lower level executive officials enjoy qualified immunity 4. diplomatic. national secrets. Analysis: 3 points i. this is the ultimate check on the president ii. the president enjoys a qualified privilege to maintain the confidentiality of executive communications a. the scope of the privilege . but the president remains liable to impeachment c.

Balancing test – Nixon’s generalized claim of privilege was outweighed by the fundamental due process rights of the parties in a criminal prosecution (not privileged) i. Privilege is inherent in Executive Branch b. executive immunity means that the president is immune from liability for damages in a civil suit for any official act performed while the president is in office a. Cheney v US District Court: SC ruled that VP Cheney didn’t have to respond to discovery orders. 3) executive privilege is not absolute c. SC refused to subject the president to potential liability on every employment . Absolute immunity for the president a. diplomatic. as long as the president was acting within the outer perimeter of the duties of the office i. but the court has recognized it as a necessary incident of the powers of the president 2. they should first explore alternatives to forcing the executive to invoke executive privilege. Summary a. 2) privilege is inherent in the Executive iii. Nixon v Fitzgerald: president is entitled to absolute immunity from damages liability based upon his official acts. SC said when DC are asked to enforce unnecessarily broad subpoenas.ii. Executive privilege is an extraordinary assertion of power. the president is protected by absolute immunity b. As long as the president was arguably performing the duties of the office. may be justifications for greater confidentiality to protect military. Nature of privilege depends on facts – may be qualified or absolute c. Presidential Immunity 1. Thus. May have to yield to other important interests iii. there is no constitutional provision conferring such immunity. there is an interest by the burglars to see the tapes/evidence – by making a due process argument 4. or national security secrets 2. not to be lightly invoked b. SC has ruled that a president has absolute immunity from civil damages liability for his official acts. Need not be invoked in civil proceeding to resist overboard discovery where DC has other means to limit scope of discovery 5. Balance of generalized need for confidentiality against interest in criminal justice 1. the assertion of executive privilege is not a necessary precondition to the Executive asserting separation of powers objections to the disclosure orders a. Invoking privilege is not a necessary precondition to civil discovery objections based on separation of powers grounds c. as with executive privilege.

etc ii. The constitution does not require temporary immunity from a civil damages lawsuit during a president’s term in office b. an incident of president’s unique office 2. supported by history and tradition ii. DC has discretion to fashion appropriate stay or other case management relief as needed a. Qualified immunity for presidential aides and advisors a. evidence can get lost. SC held that the constitution does not require that a lawsuit for civil damages against a sitting president be deferred until the president leaves office. separation of executive and judicial powers 3. impeachment. Clinton v Jones: Jones sued Clinton for sexual harassment when he was government of Arkansas i. Protection from presidential misconduct 1. press scrutiny. Separation of powers principles do not require federal courts to stay all civil damages litigation against a sitting president until he leaves office i. Justifications (don’t want the president looking over his shoulder) 1. rejecting the president’s argument that defending the suit would necessarily interfere too greatly with the president’s ability to carry out duties of the office 1. Bottom line – Clinton can be held liable for sexual harassment so he settles c. No temporary immunity from civil damages litigation for events that occurred before the president took office a. other congressional oversight 2. will not impair president from carrying out duties of office 2. Executive branch officials other than the president have qualified immunity from civil damages liability i.decision which could be traced back to the president as head of the executive branch i. ask whether a reasonable person in an official capacity knew or should have known that his actions were violating clearly established constitutional rights . desire to be re-elected 3. To determine whether qualified immunity applies. But no per se rule granting stay during term of office iii. it was unfair for Jones to have to wait. memories fade. Hypo: Monica brings the lawsuit – it could proceed because it’s not within the scope of his official duties 4. Presidential immunity does not extend to acts done before assuming office 1.

implied preemption: Congress has not expressly declared intent to preempt. Impeachment 1. key factor is determining Congress’ intent ii. There are some constraints on what are offenses that can be impeached 3. preemption may be express or implied 3. clause 2 – state law may be preempted by federal law under the supremacy clause 1. ultimate check on the president 2. general rule is qualified immunity i. Dormant commerce clause 3. Both Congress and states acting in same area and regulating the same thing a. Main concept: federal law – the constitution. federal statutes. Congress under the commerce clause and states aren’t doing anything a. Congress isn’t acting and states start to regulate a.b. State Power to Regulate (Printed through Here) a. Preemption i. example: Employee retirement income security act of 1974 preemption provision says that it “supersedes any and all state laws insofar as they may now or hereafter relate to any employee benefit plan” 2. Harlow v Fitzgerald: for executive officials in general. key issue is federal intent. State preempt by federal iii. two general categories a. Basic preemption framework 1. Clinton was on trial for perjury and obstruction of justice c. and federal treaties – are supreme (Article 6. express preemption: Congress expressly declares intent to preempt state law b. aides with discretionary authority in areas such as national security or foreign policy may be entitled to absolute immunity iv. 3 scenarios (who is acting/who is the actor) 1. but intent may be implied by the circumstances 4. express preemption – clear from express language of the federal statute a. not limited to statutory crimes – “high crimes and misdemeanors” b. On a case-by-case basis. congress expressly declares intent to preempt the state law b. not always clearly 2. field preemption – federal law occupies the field . including upper-level presidential aides exercising discretionary authority. basic commerce clause/interstate commerce 2. implied preemption (2 types): a. impeachable offenses: a. Congressman Gerald Ford “an impeachable offense is whatever a majority of the House of Representatives considers it to be” XV.

states granting preferential treatment to their in-state businesses. impossibility: of complying with both state law and federal statute 1. constitution has clearly indicated that federal law will be exclusive in an area of law 2. dormant – shield a. conflict preemption (2 types): i. They were regulating different things b. Court found no preemption because federal purpose was safety but state purpose was economic ii. or discriminating against. states discrimination against out-of-state businesses ii. likely to be found in two circumstances 1. acts as a limitation on what states can do to interface with interstate commerce c. frustration of federal purpose: allowing state law to stand would frustrate a federal policy or program 1. or 2. or near complete. comprehensive regulatory scheme shows federal intent to completely occupy the field to the complete. Gibbons discussed but didn’t decide dormant commerce clause issue 2. Historically: 1. Main concept: the “negative” of flip side of the commerce clause prevents states from unreasonably interfering with. requirements of federal and state law make compliance with both impossible 2. early approaches were categorical i. . interstate commerce. frequent issue is whether federal and state laws are mutually exclusive. Utility claimed law was preempted by federal law encouraging nuclear power b. Dormant Commerce Clause – negative implications of the commerce clause i. commerce clause is there to promote one national economy 2. all judicially made b. congress has not acted – at rest and it gives the states opportunity to wreck havoc iii. examples: foreign affairs and immigration b. Key issues are: 1. commerce clause the affirmative – sword/power source 1. Pacific Gas v State Energy: state imposed a temporary ban on construction of new nuclear power plants pending development of nuclear waste disposal plan a. exclusion of the states 3. or whether federal law simply sets a standard that state law may exceed ii.federal law so completely occupies the field that there is no room for state regulation ii.

when does a law discriminate? a. or has the purpose of effect of discriminating. on its face. etc) a. strict scrutiny – when state regulation clearly discriminates against out of state but for a reason (ie citizen health. Court 1st determines if there was no discrimination against out of state and the other side is the interests incidental underlying principles 1. Gibbons v Ogden: when state exercises police power. if a state law facially discriminates. Pike balancing test (50-50 states lose) a. local versus national concern c. if a state law does not facially discriminate or only incidentally burdens commerce. Facially neutral law: a facially neutral law may have the purpose or effect of discriminating against out-of-state interests History 1. v. means narrowly tailored c. a. Facial discrimination: the law. But if Congress chooses not to exercise this power. discriminates against out-of-state interests b. the “dormant” or “negative” commerce power may still prevent states from regulating interstate commerce c. vi. modern analysis: a. commerce versus national concern b. or treats in-state and out-of-state interests the same 3. Congress has plenary power to regulate interstate commerce: a. court employs a much more lenient balancing test 3 tests 1. federal law may preempt state law b. direct versus indirect regulation of commerce today. per se – state regulation to give competitive advantage over out of state a. vii. key issue is whether state law discriminates against out-of-state interest. safety. states lose 100% of the time 2. 2 prongs i. states lose 90% of the time 3. compelling reason ii. central question: Has the state discriminated against out-of-state interests. a nearly per se rule of invalidity applies ii. high standard of judicial scrutiny – burden on the states b. a variety of approaches that tended to be categorical 2. To the extent Congress chooses to exercise this power. it is not exercising any power to regulate commerce . or are in-state and out-of-state interests treated the same i. Court has inferred dormant commerce power from textual grant of commerce power 2.iv. a functional inquiry centering on discrimination against interstate commerce 1.

some require uniform. then state law is either per se invalid (local economic protectionism) or strict scrutiny applies (Maine v Taylor) i. opposite of express preemption (saving clause of state regulatory authority) 5. Congressional authorization of state regulation 1. SC said that it was constitutional as there was no need for national uniformity here and room for local regulations i. if state law does not discriminate or only incidentally burdens out-ofstate interest. if Congress authorizes a state to impose a discriminatory tax on out of state entities. Analysis i. No preemption – express authorization/saving clause 1. ports in Seattle made ordinance requiring double haul in order to dock in port a.a. Congress didn’t regulate in this area and it was a minor impact to interstate commerce 4. Court did not resolve dormant commerce clause issue 3. 1st: does the state law discriminate against out of state interests? a. local regulations b. Willson v Black Bird Creek Marsh: authorizing a dam was within state’s police power a. against a dormant commerce clause challenge. If yes. a South Carolina law that taxed out-of-state insurance companies at higher rate than instate insurance companies a. Example: After Exxon tanker spill. Regulation of pilots didn’t require exclusive national law. It was discriminatory to give in state insurance companies preferred status i. but will be invalid under the equal protection clause if the only reason for the law is local economic protectionism a. Maine v Taylor is the only example were state wins under strict scrutiny 2. national regulations 2. Congress said so in federal law ii. Industry fought it saying that if it was for safety that it is up to Congress to regulate (national conformity) viii. then apply a balancing test that weighs the burden upon . Prudential Insurance Co v Benjamin: the SC upheld. others require diverse. Current doctrine: a 2 step analysis 1. such a tax will be immune from a dormant commerce clause challenge. Power to regulate commerce entails a wide range of subjects: 1. Cooley v Board of Wardens: local pilots were required for boats coming into port in Philadelphia because they were aware of the channels a. Congress can’t allow state to tax/behave in a way that is unconstitutional 1. must be express: the courts won’t imply it ix. Enhanced property values along waterway and improved health b. rare that it exists 2.

when law is motivated by economic protectionism alone. SC ruled unconstitutional because Madison had less drastic means available to achieve its goal of ensuring safe milk . #2 keeping in state products and services in: laws that discriminate against out of state buyers iii. Bottom line: it was unconstitutional. and is motivated by a legitimate local interest i. not legal for NY to do this. #1 keeping out of state products out a. the court uses the per se rule b. milk) 4. their products. SC ruled the law discriminated against interstate commerce even though some people within Wisconsin were disadvantaged (outside the radius).interstate commerce against the local benefits of the law (Pike balancing) a. if a law is discriminatory. Dean Milk v Madison: the SC invalidated a Madison ordinance that prohibited the sale of any milk that was not pasteurized within 5 miles of Madison (clearly trying to give locals a competitive advantage). or their services ii. Purpose and effect of law was economic protectionism – to suppress competition between the states iii. a per se rule of invalidity applies (Wyoming v Oklahoma) 5. This law created too great a “risk of multiple burdens” (ROMB). the national market would be fragmented i. SC will apply “the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives” (Hughes v Oklahoma) b. Baldwin v GAF Seeling: the SC invalidated a NY law that prohibited the sale in NY of mike bought outside NY below a price set by NY law. high impact for interstate commerce ii. If other states passed the same kind of law. then SC will uphold the law unless the burden on interstate commerce is clearly excessive in relation to local benefits (Pike) 3. categorizing state laws a. if state law does not discriminate or only incidentally discriminates against out of state interests. sometimes helps to consider the type of burden laws place on interstate commerce: i. dormant commerce clause cases deal primarily with 3 commodities (waste. #1 keeping out of state products and services out: laws that discriminate against out of state suppliers. simple economic protectionism is never a sufficient local purpose c. Law facially discriminated against out of state milk producers (NY trying to extend its’ territory) 1. #3 environmental protectionism: laws that seek to preserve natural resource for in state persons or uses XVI. ROMB: risk is the SC allows it – other states will do it and it will led to many problems with interstate commerce iv. bait fish. more on discriminatory laws a.

here is the city was really concerned about safety there were other options a. Case says that the commerce clause trumps the 21st amendment e. if “reasonable nondiscriminatory alternatives” are available 1. Washington already had a better grading system in place. Flaw in NC system was it was just trying to discriminate against other states i. SC used a little of the per se test. SC focused on the 2nd prong. SC suspected economic protectionism but accepted stated purpose of protecting consumers from fraud and deception ii. but the entire tax is paid into fund to be distributed to Mass dairy farmers. Tax of producers. West Lynn Creamery v Healy: SC invalidated a Mass pricing order which imposed a tax on all milk sold. Madison argues they were discriminating against in state and out of state a. spending to distribute fund to in state producers in a form of a subsidy a. Granholm v Heald: state law that allow instate wineries to sell wine directly to instate consumers but limit out of state wineries from doing so discriminate against interstate commerce in violation of the commerce clause i. tax/spend. general rule: don’t accept states on face value. SC said a nondiscriminatory alternative was available – allowing Washington grades iii. SC applies strict scrutiny (clue is the court talks about adequate alternatives) 1. Rule: a state may not set up a system under which it subsidizes instate economic interests at the expense of out of state economic interests 1. The disbursements from the fund amounted to a subsidy of in state dairy interests i. they require adults to sign for the shipment) ii. State using 2 powers. Court said instead Madison was trying to put itself on an island c. even in the exercise of legitimate police power (public health). SC ruled that the law discriminated against interstate commerce because it benefited the local producers at the expense of out of staters. because less discriminatory alternatives are available a.i. they couldn’t ship wine to Michigan residents but Michigan wineries could 1. rely on inspectors of other jurisdictions. They looked at how other states handle the issue (ie. Statute facially discriminated against out of state wineries. are there reasonable alternatives i. SC is usually ok with exceptions to health/safety 1. SC didn’t accept Michigan’s argument about preventing wine being shipped to minors. Most of the milk was produced out of state. The problem is that the 2 things by themselves are fine but when put together it’s unconstitutional . City can’t discriminate. and strict scrutiny (combo of tests is common) d. send their inspectors the plants and charge Dean for the inspection iii. made reference to Pike balancing. Hunt v Washington State Apple: NC was concerned over consumer protection so they required a grading system to classify apples shipped into NC according to the USDA. here they were definitely trying to protect local producers ii.

a virtual per se rule applies i. SC was also concerned of ROMB.b. NJ attempted to use health concerns for support of law. Bottom line it was unconstitutional b. The economic unit is the nation. SC upheld the ban even though it would benefit Maine’s baitfish industry i. In addition. even if it has a legitimate purpose 1. the SC was concerned about the ROMB with hoarding of resources b. the language sounds like per se rule but it announces the Pike Balancing test a. SC reiterated the rule that state may not give its residents preferred right of access over out of state residents (NJ was trying to hoard landfill space: SC said garbage is garbage regardless where it comes from unless there is a hazardous situation which didn’t exist here) 1. #2 impact on interstate commerce XVIII. Maine v Taylor GOOD FINAL EXAM REVIEW: SC upheld a law that discriminated on its face against out of staters. Philadelphia v NJ: SC invalidated a NJ law which prohibited the importation into NJ of waste that originated or was collected outside NJ. NY denied the application on grounds that H’s facilities would reduce the local supply of milk i. states may not use police powers to suppress competition b. AZ is trying to protect agriculture and packaging jobs. effect was discriminatory ii. SC said that this kind of law is virtually per se illegal. Since the purpose was to exclude it was facially invalid 1. #3 preserving environmental resources for in state use a. it would be an invitation for every state to pass law prohibiting importation of trash which would destroy the interstate market for the sale of it iii. #1 state benefit ii. SC noted that it would view with particular suspicion state statutes that required business operations to be performed instate that could more efficiently be performed out of state i. Pike v Bruce Church: SC invalidated an AZ law requiring that growers of AZ cantaloupes pack them in AZ. HP Hood v DuMond: H owned 3 milk receiving stations and sought license to open one in NY. Maine prohibited the transfer into Maine of live baitfish from out of state. SC finds this due to local protectionism a. law facially discriminated. SC said that if simple economic protectionism is effected by the law. SC was persuaded by Maine’s argument that its unique population of wild fish would be threatened by parasites from out of state fish and that there was . 2 prongs i. #2 keeping in state products in state a. It wouldn’t have been unconstitutional if the tax was put into the general revenue fund and all of the special interest groups are able to fight over it including the milk producers ii. Test used was a combo of per se/strict scrutiny XVII.

J. SC focuses on 2nd prong of strict scrutiny (narrowly tailored) and found there were no less restriction alternatives available c. no alternative with lesser impact on interstate commerce was available to achieve state’s objectives ii. majority said that it was constitutional because it was municipally owned a. J. Hughes v Oklahoma: SC invalidated an OK ordinance that banned the exportation for sale outside the state of minnows that were procured within the waters of OK . so question was whether incidental burden on interstate commerce was clearly excessive in relation to its local benefits 1. thus the state wins (best case example of Pike Balancing where state wins) d. impact on interstate commerce was relatively minor a. SC applies strict scrutiny finding there were no nondiscriminatory alternatives (only example where state wins at strict scrutiny under dormant commerce clause) a. SC found no discrimination i. United Haulers v Oneida-Herkimer Solid Waste: similar to Clarkstown but the difference was that here it was municipally owned where Clarkstown was privately owned 1. Maine’s statute clearly discriminated (facial discrimination since it was 100% total ban) against out of state baitfish. an evenhanded regulation: all plastics were disfavored regardless where produced). O’Connor in the concurrence applies Pike balancing and reaches the same result iv. at an increased cost because the city guaranteed a minimum waste flow through the station i. but for the legitimate purpose to proven aquatic ecology 1. but allowed other nonreturnable milk containers made of pulpwood (primary made in state). Law didn’t discriminate against interstate commerce (ie. Minnesota v Clover Leaf Creamery: SC upheld a Minn law that banned nonreturnable milk containers made of plastic (primary made out of state). Since the law differentiated between the type of container rather than instate vs out of state producers. Pike balancing less discriminatory means to protect against the importation of the parasites ii. CA Carbone v Clarkstown: SC invalidated a local ordinance that required that all non-recyclable solid waste generated within the town be processed at a local processing facility (because they were the one who financed building the facility). Kennedy applies per se rule for local economic protectionism iii. the town was trying to create a monopoly for local protectionism ii. they may be using the market participant exception but not stated in the opinion e. and that the town had less drastic means available to achieve its goals 1. clearly natural resource issue on one side 2. SC said it discriminated against interstate commerce.

SC said that it was facial discrimination which invokes strict scrutiny of any purported legitimate purpose and of the absence of nondiscriminatory alternatives i. court thinks this isn’t true (fewer longer trains offers no benefit) 2. reciprocity requirement is a law which allows residents of state B to do business in state A only if state B grants the same privilege to residents of state A XIX. clue for strict scrutiny is if they gave alternatives ii.(state trying to protect natural resources – there was no regulation for in state). they applied the strict scrutiny test. thus it was unconstitutional c. Geer case declared states own fish/game therefore it was ok to regulate 1. NY requires the 8 states around NY distributors to post their prices. Case illustrates concept of reciprocity requirements (violate dormant commerce clause because ROMB) 1. wild animals are not owned by one state. SC said it wasn’t legal because NY was trying to project its legislation on other states XXI. 2nd prong: it wasn’t narrowly tailored because it wasn’t a total band. Southern Pacific v Arizona: SC invalidated an AZ law that limited the length of trains in the state to seventy freight cars (AZ said it was required for safety reasons). Regulation of transportation (still state power to regulation) a. and they didn’t regulate in state i. 1st prong: OK has a compelling reason b. court says its ok because corporation chartered in state “creatures of state government” XX. but the states still have police power to regulate them (still good law. even though Geer overruled) f. and thus required uniformity in regulations (similar to Cooley for the need for national uniformity) i. then NY requires their prices to be the lowest i. 1st prong: are there real benefits (safety) a. not per se because a valid reason for protecting the natural resources a. Brown Distillers v NY State Liquor Board: NY trying to project itself over state lines. CTS Corp v Dynamics: Indiana trying to protect charters from being taken over by outsiders. 2ns prong: impact to interstate commerce . Sporhase v Nebraska: SC invalidated a NE reciprocity requirement that denied a permit to withdraw and transport NE water for use in another state unless the other state granted reciprocal rights to transfer its water into NE (SC declared ground water was article of commerce) i. but may regulate to protect ecology 1. State regulation of tender offers (don’t need to focus on) (still state power to regulation) a. Test used is early form of the (Pike Balancing) 1. SC said AZ law imposed too great a burden on an aspect of interstate commerce that is national in scope (interstate rail transportation). Extra-territorial regulation (still state power to regulation) a. SC overturned Geer that states don’t use their fish and wildlife.

a. Illinois said it was for safety but there was no evidence of this and manufacturer was located in Illinois (protects law company) 1. When state acts as a market participant and not as a regulator. it may discriminate against out of staters for any reason. Statute didn’t facially discriminate 1. State as a Market Participant (exception to the dormant commerce clause) (still state power to regulation) a. border cities exemption allows truckers into border cities to by 65 ft 1. court normally defers to legislative judgment b. it was unconstitutional because there was too much burden on interstate commerce c. including local economic advantage. but said that Iowa failed to present any persuasive evidence that 65 ft trailers are any more dangerous than 55 ft single trailers i. rather than a market regulator. livestock/agriculture inside of the state are allowed to use 60 ft 1. court said they aren’t concerned with safety here. but it just benefits the cities ii. there were exceptions to the law i. Kassel v Consolidated Freightway: SC invalidated an Iowa law that prohibited 65 ft double trailers from operating in the state. dormant commerce clause doesn’t apply i. here the state acknowledged that it wanted to divert truck traffic around the state 2. Test used is Pike Balancing 1. Bibb v Navajo Freight: SC invalidated law that required special mudguards to be welded on all trucks operating within the state. state said purpose of law was highway safety a. this looks to the court that the state is giving themselves an advantage ii. and be immune from a dormant commerce clause analysis . claimed purpose must not be illusory c. impact was significant because railroad companies have to break trains up ii. burden was big because most states allows 65 ft so interstate truckers have to break up truckers or avoid Iowa a. state may favor in state interests over out of state interests ii. The law caused long delays for trucks entering Illinois from other states i. The SC alluded to the strong presumption in favor of state highway regulations. when the state acts as a market participant. bottom line it was unconstitutional b. there was a ROMB if the law was upheld other states could pass similar laws and cause bug burden on interstate commerce XXII.

court reaffirmed Hughes market participant exception 2. Limitations to market participation exception i. critical issues i. SD sold to both in and out of state. Analysis 1. Out of state processors claimed disproportionate burden violated the commerce clause i. what market is the state participating in? iii. when states act as proprietors. a state is a market regulator when it acts in its sovereign capacity to regulate what other parties can do within their contractual relationships d.b. state had essentially entered the market to “bid” for abandoned vehicles 3. even more so than state as scrap dealer 4. Out of state processors had to provide more proof of title than in state processors. state was a market participant. SC ruled SD was a market participant its preference for instaters was not subject to a dormant commerce clause challenge ii. therefore it was constitutional g. when state acts not as regulator but as market participant. “nothing in…the commerce clause prohibits a state…from participating in the market and…favoring its own citizens” f. Hughes a Alexandria Scrap: state paid a “bounty” for abandoned autos into scrap. A state will be treated as a market participant as long as it is making purchase or sales decisions in relation to a contract to which it is a party . cement is product of complex manufacturing process and not a natural resource a. and could discriminate against out of staters if it chose to ii. As a result of a cement shortage SD built and operated a cement plant. should enjoy the same freedoms as other market actors 3. not a regulator 2. court said not dormant commerce clause before SD was using their spending power. privilege/immunity clause) e. regulator vs market participant ii. equal protection. Analysis (it was facially discriminatory. state acting as cement seller is clearly a market actor. During a cement shortage SD decided to sell cement to in staters first and out of staters getting anything left i. other constitutional limitations still apply (ie. state may favor its own citizens a. Reeves v Stake: SC upheld a SD policy of preferring in state buyers of cement produced at a state-owned cement plant. SC upheld the different requirements because the state had entered the auto salvage market. since verb in commerce clause is “to regulate” when state uses another the dormant clause doesn’t apply and it allows the state to discriminate about out of staters c. since they own the plant and it was operating as a private business 1.

then but cannot. section 2. Other limits on state power (still state power to regulation) a. Interstate privileges and immunities: limits the ability of a state to discriminate against out of staters 1. certain economic activities. since early 20th century. article 1. Limits on impairing contracts: hibernating 1. as soon as it tries to control the terms of a contract to which it is not a party. section 10. clause 1: “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states” . added to dormant commerce clause and taking clause of the 5th amendment b. under the doctrine. 1st question to ask: is there a basic right being affected ii. then regulate beyond that XXIII. Privileges and Immunities a. prohibits state from impairing obligations of contracts 4. can’t impair obligation of existing contracts 2. exercise of basic rights like: i. section 2. such as employment or pursuing a trade or business (no discrimination against out of staters) 3. clause 1 3. clause 1 2. narrower than persons 4. don’t confuse 14th amendment 5.1. but required as part of the contract that the timber be processed in the state before it could be shipped out of state 1. market participant allows state to influence a discrete and identifiable class of activity in which in participates a. under article 4. one state may not discriminate against citizens of another state in regard to a. it is acting as a market regulator and the dormant commerce clause will restrict its actions ii. in 19th century. Text of article 4. access to courts (equal to resident/non-resident) ii. South Central Timber v Wunnicke: a plurality found Alaska was not acting as a market participant when it sold state owned timber to buyers. the importance of Contract Clause has waxed and waned a. buying/selling property iii. Main concept: the constitution places several other express and implied limitations on state power. states can’t discriminate for rights they give their citizens but deny out of state people XXIV. applies to citizens. not much attention iii. utilized to strike state law impairing individual rights b. including: i. interstate travel iv. the problem was that Alaska was trying to control a market transaction by regulating the shipment (in state processing) that occurred subsequent to the initial sale of timber by the state 2. historically.

there is a substantial (or important or significant) reasn for the unequal treatment b. thus as a market participant they can discriminate for using Camden residents to get around the dormant commerce clause. This clause only protects individuals. This is between strict scrutiny and rationale basis c. State may justify discrimination by showing (from Lunding v NY Tax Appeals Tribunal) a. Analysis (2 steps) i. General rule privilege/immunity prohibits a state from denying to out of staters privileges that it grants to its own citizens i. United Building and Construction Trade Council v Camden: SC upheld that privileges/immunities clause is available as a challenge to a municipal ordinance that set aside a certain % of jobs on city-funded construction projects for city residents (Camden is trying to preserve construction jobs for residents) i. elk hunting in Baldwin) ii. people are being discriminated against by not being able to pursue employment 2.b. so they can’t answer if it passes immediate scrutiny and it is remanded back iii. does not apply to recreational pursuits (ie. and applies only when a state is discriminating against out of staters in relation to the exercise of a basic or fundamental right d. not corporations. The SC doesn’t know where the 40% comes from. Yes. Discrimination permitted only if substantially related to achieving an important or significant state interest 1. it has to substantially fit ii. First. Second. Standard – intermediate scrutiny (this standard is only used for privilege/immunity and contract clause sections) i. Seems to be applied in 2 circumstances: a. Camden acting as a market participant because building public infrastructure using Camden tax dollars 1. step 2: can the state justify the discrimination? a. the discrimination is substantially related to achieving the state’s purpose e. Here the problem was a 40% in city hiring requirement and will it curtail unemployment b. (2) can the state justify the discrimination? 1. Take away: market participation doesn’t work as a free pass to privilege/immunity . analysis 1. step 1: does the state burden a protected privilege or immunity? a. 1st states discriminating against out of staters in regard to constitutional and other important rights b. 2nd states discriminating against out of staters regarding right to work or earn a livelihood c. (1) does the state burden a protected privilege or immunity? 1. the but problem is the privilege/immunities ii.

Wider reach than dormant commerce clause because no similar exceptions (ie. Contract Clause a. Court resolved using the 5 factors from Blaisdell (big 3). Notes regarding privileges and immunities i. temporary/permanent – here it was permanent 3. It caused a significant impairment on existing contracts which was caused by the state because it required the Allied to put more money into the fund i. Privileges and immunities applies only to basic or fundamental rights and not recreational interests iii. the conditions imposed were reasonable 5. market participation only works for to get around the dormant commerce clause f. the court uses a 3-part test to determine the constitutionality of the law): i. the legislation was “temporary in operation” and “limited to the exigency which called it forth” ii. In upholding the law. solution reasonably related 3. was it widespread 2. Privileges and immunities applies not only to states. Analysis (if a state passes a law which impairs the obligations of an existing contract. professor’s analysis is found below in Allied Steel c. and found it impermissible 1. Home Building & Loan Association v Blaisdell: state law extended mortgage redemption period i. the relief was appropriately tailored to the emergency 4. Limited to natural persons who are citizens iv. and iii. Article 1. the SC found 5 factors significant (Blaisdell factors) to apply immediate scrutiny 1. Has the law substantially impaired an obligation of an existing contract ii. Is the law based on reasonable conditions and is it appropriate to the public purpose underlying the law 1. section 10. the law was not designed to favor a special group “but for the protection of a basic interest of society” 3. not widespread 2. clause 1: “No state shall…pass any…law impairing the obligation of contracts…” b.1. Does the government have a significant and legitimate reason for the impairment. but to political subdivisions of states ii. was it temporary or permanent d. Allied Structural Steel v Spannaus: Minn changed the vesting period for voluntary retirement programs. exam: the big 3 of the factors are (only need these) 1. not clause to being reasonably related . market participant) XXV. there was an emergency need “to protect the vital interest of the community” 2.

(1) did not deal with broad social problem ii. legislation here had narrow focus. if in dormant commerce clause i. move to #3 2. analysis 1. per se. tests 1.state loses 100% of the time 2. apply Pike Balancing (#3) iii. exit 2. Commerce Analysis (commerce clause and dormant commerce clause) a. if yes. if both are acting – preemption issue 1. if dormant commerce clause (flow chart) i. (2) not an area already subject to state regulation iii. then apply pike balancing 4. if yes. if no. more severe alternation will prompt a “careful examination of the nature and purpose of the state legislation” c. are states restricting iii. move to #2 ii. if no. if Congress – commerce clause analysis ii. 1st question: who is acting i. thus giving the in state residents a competitive advantage ii. second inquiry was whether alternation was necessary to meet an important general social problem a. saving clause – when federal statue specifically allows states to act b. if doesn’t discriminate on face Pike Balancing c. Exam: if think it is facially discriminatory talk about both per se/strict scrutiny. #2: critical issue: is the state regulation facially discriminatory? (in-staters vs out of staters) 1. strict scrutiny 3. if Congress not acting and the states are – possible a dormant commerce clause 1.ii. not intended to protect a broad social interest b. if state regulation is not facially discriminatory a. minimal alternation may end the inquiry b. evenhanded treating both in/out of state the same. what is the nature of the state regulation: is state regulation facially discriminatory against out of staters. (3) not a temporary alternation of contractual relationships XXVI. #1: initial question: does state law affect interstate commerce? 1. the effect of this law was severe: substantially changed contract term and imposed unexpected financial liability 2. #3: test: Pike balancing . application of the Blaisdell factors: law did not possess attributes of those that have withstood Contract Clause challenge: i. first inquiry was whether state law had substantially impaired the contract obligations a.

Federal DC heard the case and decided the Commish not authorized by TX law. economic protection. Pullman abstention i. An abstention issue arises when a federal court has jurisdiction to hear a case. The abstention doctrine deals with the relationship between the federal and state court systems ii. #2 narrowly tailored means (the approach/solution that is being applied) i. Younger abstention: federal courts abstain from issuing injunctive relief in regard to pending state court criminal proceeding 3. Federal courts will abstain from exercising jurisdiction. the case was originally filed in federal DC because Pullman felt less of a home cooking TX bias . for both prudential and constitutional reasons (both Pullman and Younger based on Federalism: federal courts defer to state courts) 1. but declines to do so out of respect for state courts iii. #4: tests: 1. The 11th amendment limits the ability of federal courts to hear cases in which an individual sues a state b. in both abstentions federal court will not allow criminal Ds to jump to federal court. Pullman abstention: federal courts abstain from exercising jurisdiction where resolution of a constitutional issue turns on an unsettled question of state law 2. SC reversed and remanded saying federal DC should have abstained on TX state law question and allow TX to decide issue 1. the federal court could hear the case but chose not to ii. public health/safety) b. because a federal question is present. if yes apply per se test 2. per se test: reach conclusion: state law invalid 2. It is an example of judicially-imposed limitation on the exercise of federal judicial power c. strict scrutiny (use 2 prongs) a. importance of local issue a. strict scrutiny v. #1 compelling interest (ie. Abstention (general information) i.1. 11 Amendment and the abstention doctrine a. #3: identify purpose: 1. instead will require them to finish in state court prior to moving to federal court a. Reach conclusion: state law is generally valid iv. General information i. burden on interstate commerce vs. Railroad Commission of Texas v Pullman: RRs filed suit in federal court challenging order of the Commish that all sleeping cars in TX be under the control of a Pullman conductor (white) instead of a porter (black) claiming the order violated their equal protection rights. if yes to both: reach conclusion state law th XXVII.

P must litigate state law matter in state court a. if there is serious danger to the rights of the state criminal D 1. Procedure 1. Pullman arises when 1. concern is if the SC makes a decision (tentative answer) on the law of TX it could be supplanted by a state court decision c. Contrast Pullman/Younger i. theory: the state has the best knowledge of state criminal law. a lawsuit is filed in federal court 2. in state court and then seek review of final state court decision by SC. P seeks to force stay of state proceedings for federal intervention. uncertain. may choose to litigate all issues. the final word on the meaning of the law “belongs…to SC of TX” b. may reserve federal issues and return to federal court after litigation of state issue is completed in state court d. In Pullman. or other unusual circumstances. the issue of state law is ambiguous. must show bad faith. a pending or threatened criminal prosecution b. and generally the federal court refuses to intervene out of respect to the state courts . the federal court stays its own proceedings to allow state court action on state law issues ii. if there is no exception the federal court will kick it back to state court e. or the statute expressly authorizes it 2. second.2. or relief on its face is unconstitutional (this facially unconstitutionality doesn’t bar good faith efforts to enforce). and it would open the floodgates and allow state criminals into the federal courts to challenge their charges iv. In Younger. or unsettled iii. Younger abstention i. issue was did TX law give the Commish power to make the order? The statute was unclear a. and 3. or 3. some states allow certified questions 2. Harris moved to enjoin prosecution ii. the case involves issues both of federal and state law. otherwise. Younger v Harris: Harris inducted in Cali state court charged with free speech violation. harassment. P must show a. Exceptions when they can jump directly to federal court (criteria for federal court action where the federal court may choose not to abstain. arises when a D in a pending state criminal proceeding files a lawsuit in federal court seeking to enjoin the pending state criminal proceeding iii. state and federal. Under Younger. first. abstention is discretionary. and review is subject to abuse of discretion standard ii. general rule: a federal DC will not enjoin a pending state criminal proceeding unless the prosecution is brought for purposes of bad faith or harassment 1. to obtain federal injunctive relief. even if there is a pending state criminal proceeding. abstention in its classic form.

Pullman – lawsuit starts in federal court. and by citizens of other states and foreign countries ii. a state can waive its 11th amendment immunity by a clear and unequivocal statement and consent to be sued in federal court. but rarely do iii. easiest way it to include in the statute that the state can be sued 2. states can waive immunity (and be sued in federal court). this means that some types of suits against state must initially be brought in state court. Hans v Louisiana: (example of the court interpreting it) court said that the 11th amendment prohibited suing a state by a resident of that same state (even though not what the 11th amendment says) 4. Congress can abrogate (means same thing as waive state government immunity) state’s 11th amendment immunity by (4 factors. history 1. rather than federal court. typically seen in civil rights cases): 1. Based on sovereign immunity and understanding of Framers at time constitution was drafted a. political subdivisions aren’t covered (language states “only states”) . it clearly states that non-residents can’t sue states in federal court and this was designed to fix the result of the Chisholm case 2. proportionality in the remedy provided v. 11th amendment doesn’t apply to federal government – federal agency can sue a state to enforce a federal statute b. pursuant to a proper power source (ie §5 of the 14th amendment. a clear expression of intent to waive immunity a. 11 amendment i. it would be suing them in federal court) a.iii. main concept: the 11th amendment bars suit against a state in federal court by citizens of that state. and members of state government from being sued in their official capacity (ie. suits by federal government and other states not prohibited 2. unless state waives 11th amendment immunity 3. inadequate state grounds – starts in state court 2. limitations 1. congruence with the factual record of state violations of civil rights a. this is the only power source – not commerce clause from Seminole Tribe case) 3. Chisholm v Georgia: 11th amendment came as a result of this case. they have to document widespread violations of civil rights 4. 11th amendment protects states. two versions of the 11th amendment: as written and as understood and interpreted by the court a. but this doesn’t happen often iv. is it the state? 1. then issue of state law th f. Issue is where does the lawsuit start 1.

under color of state law b. may be able to sue someone in their individual capacity (ex parte young) for prospective injunctive relief 2. not as an officer of the state . RR arguing Minn set rats so low they cant turn profit and thus profits were taken. not retroactive vi. officer is simply restrained from doing an act he has no legal right to do so ii. even though when a state officer is sued to prevent enforcement. thus he loses his shield iii. “authority stripping” once he is stripped of his official capacity and loses immunity then can go after him as an individual 2. Name the state officer as an individual. state officers having duty to enforce state laws. official vs individual capacity a. think of sovereign immunity as a shield (have to be acting within lawful authority) b.b. The legal fiction is suing a state official in their capacity c. the officer is stripped of official character and is subject to the consequences of his conduct (state cannot immunize the officer in such cases) 1. individual capacity lawsuit seeks to impose individual liability upon state officer for actions taken in official capacity. suit not barred because officer acted in official capacity c. and who do so or threatened to do so in violation of constitution. Suits permitted (against state officers for prospective relief) 1. if state officer attempts to enforce an unconstitutional law. the state is the real party in interest i. It was a regulatory taking case. only prospective. Young said he was acting in his official capacity a. The only remedy under Young is prospective injunctive relief d. he is outside of official capacity because he is trying to enforce unconstitutional law. Young creates a legal fiction that there is a meaningful distinction between the state and its officers. if suing state/named official then generally won’t be able to sue them in federal court a. under Young. but if sue them as an individual it remains immunity b. but if suit would lead to monetary relief against state directly (other than through indemnification) then 11th amendment prohibits 3. Rules: who to get around the 11th amendment bar to the exercise of federal court jurisdiction when an individual sues a state i. may be enjoined by federal court i. Ex Parte Young: statute that authorizes enforcement of RR rates.

Allege that the state officer acted outside the scope of his authority by violating your rights iii. The P requested retroactive money damages. Seminole Tribe v Florida: Tribe filed suit when FL failed to negotiate their compact in good faith under IGRA. SC invalidated the provision of IGRA that allowed tribes to sue states in federal court to enforce IGRA. and was barred by the 11th amendment 3. arguing that welfare benefits were withheld in violation of federal regulations (lawsuit starts under Young theory. state may not be held responsible for past monetary damages even if a state officer is sued for prospective relief c. the SC denied the request for retroactive damages. important limitations a. prospective relief – an order requiring timely payment of future benefits – was permitted. Prospective injunctive relief permissible i.ii. When lawsuit was filed FL moves for immunity. Where Congress authorizes suit (Abrogation) 1. a P cannot receive any retroactive money damages from the state 1. general waiver – ie consenting to suit in “any court of competent jurisdiction” is not enough (Kennecoot Copper Corp) vii. even though the funds would come from the state treasury 3. a. theory that it could bankrupt state by a federal court order (and create unbalanced state budgets) b. and prospective injunctive order compelling state officials to pay him the correct amount in the future 1. despite the fact that the state would have to pay more money in the future by way of increased welfare payments 2. Allege that the state officer violated your federal rights 2. no retroactive money damages i. because state officials not processing claims in timely manner). Congress may not abrogate a state’s 11th amendment immunity by acting under the commerce clause 2. Case gives the 1st requirement of abrogation . retroactive – the award of wrongfully withheld past benefits was a damage award payable from the state treasury. waiver must be stated in express language or be found by overwhelming implication from statutory text leaving no room for any other reasonable construction (Edelman) b. where the state waives sovereign immunity (express waiver) a. Prospective injunctive relief is permissible to force a state official to comply with federal law in the future ii. but granted the injunction. Edelman v Jordan: a P sued a state official.

Fitzpatrick case: section 5 of 14th is a valid power source to abrogate states’ 11th amendment immunity because the states voted to ratify the 14th amendment and thus waived their immunity for civil rights 3. record of widespread pattern of discrimination (congruence) 2. of Ala v Garrett: G filed discrimination suit under title 1 of the ADA which prohibits states from discriminating on bases of disability i. remedy provided must be proportional to damages ii. NV Dep’t of Human Resources v Hibbs: father of newborn wants to take time off to spend time with his family. no the 14th amendment i. SC ruled that only section 5 of the 14th is the only constitutional provision under which Congress may unilaterally abrogate a state’s 11th amendment immunity from suit in federal court b. congress must document wide-spread violations of civil rights by states to justify abrogating state 11th amendment immunity b. section 5 of the 14th amendment allows congress to abrogate state immunity 2. SC imposed 2 more requirements for abrogation (see above) 1. He was told to i. . Bottom line of the analysis: there was a clear intent by the state saying they can be sued in US DC. Bd of Trustees of U. but there wasn’t a valid power source because they used the Indian commerce clause. Congress in passing the ADA didn’t identify a pattern of discrimination. 2nd requirement: congress must act pursuant to a valid exercise of power 1. here congress names the states as parties that can be sued ii. congress used the Indian commerce clause a.1st requirement: congress must express its intent to abrogate state immunity by a “clear legislative statement” 1. The commerce clause doesn’t work (this overrules PA v Union Gas which the SC decided 6 years earlier but the justices changed) b. thus section 5 of 14th did not apply and Congress didn’t have a valid power source to abrogate the state’s immunity under title 1 1. Congress may not abrogate a state’s 11th amendment immunity by acting under section 5 of the 14th amendment if it has no underlying constitutional power to do so a.

SC reasoned that congress both clearly stated its intention to abrogate states’ immunity and acted within its authority under section 5 of 14th amendment 1. and 2. Federal courts cannot provide iii. question is this the proper party to bring this case? ii.come back at a certain time and didn’t. Favorable decision will redress the injury d. SC focuses on the fundamental right to assist in your own defense at trial. P has suffered or will imminently suffer an injury b. This prohibition. remedy was retroactive pay and reinstatement of his job a. Main concept: the justiciability doctrines are related to the prohibition against federal courts giving advisory opinions. this is the 1st time where state loses and statute is upheld c. so he was unable to attend and help in his own defense i. Requirements: 1. monetary damages are allowed where there is abrogation (must be proportional) 2. standing: is this the proper party to litigate? 2. He brought suit under Family and Medical Leave Act i. in turn. Likelihood of injury is immediate and not speculative . ripeness: is judicial review premature? 3. Limitations on Judicial power and review (Justiciability Doctrines) (printed through here) a. Some state constitutions allow state courts to provide (ie. there is a substantial likelihood that a decision will bring about some change or have an effect c. General i. Fundamental limit on article III judicial power ii. Advisory opinions i. thus Tenn is subject to both monetary and injunction penalties ii. SC looked at the 4 factors and it passed all of them 1. Injury was caused by D’s conduct c. Not an advisory opinion if 1. and was fired. mootness: does an actual controversy still exist? b. Michigan) iv. Tennessee v Lane: Lane was paralyzed and brought suit under title 2 of ADA because his criminal trial was on the second floor of the court house and it wasn’t handicap accessible. is derived from the article III “case or controversy” requirement 1. there is an actual dispute between 2 or more adverse litigants. yes there was abrogation. because this is a fundamental constitutional right the standard is raised to strict scrutiny XXVIII. constitutional a. standing i.

Advisory Opinions a. For the P. An advisory opinion is an opinion requested by an executive official. generally. Generally concerned with pre-enforcement review of a statute or regulation iv. (ie. An actual dispute between adverse litigants 1. very narrow exception for expenditures in religion clauses cases c. Standing a. asking a court to rule on the constitutionality of some proposed government action before the law has been applied to anyone i. claim must be within the zone of interests protected by the statute or regulation in question d. There is no party who has been adversely affected by the law. limited exceptions for 3rd party standing b. Events after filing may dispose of controversy iii. settlement. P can only assert P’s rights i. examples of lack of dispute: a. question: has there been an injury yet? iii. prudential a. fitness of the issues for judicial review – issues are primarily question of law. no actual dispute remains) XXX. if suing a federal agency. Advisory opinions are not within the article III definition of a “case or controversy” so federal courts may not issue such opinions c. Exceptions to mootness 1. no actual dispute if parties collude to bring litigation b. so the opinion is merely advisory in nature ii. capable of repetition yet evading review 2. Standing has to do with whether the proper party is seeking to raise an issue in federal court i. ripeness i. no suits by taxpayers or citizens for “generalized grievances” i. not fact e. class actions XXIX. then no dispute to be resolved c. if no standing because no injury fairly attributable to D’s conduct. hardship to the parties if review is denied – “costly dilemma” 2. or by a legislature. if the case is moot because parties have resolved.2. mootness i. Not an advisory opinion if there is i. overlap with standing ii. question: does an actual controversy exist at all stages of the proceedings? ii. Article III judicial power is limited to “cases” or “controversies” b. 2-factors – Abbott Labs 1. the question is whether he is able to invoke the jurisdiction of a court to hear a case .

injury must be personally suffered by P i. this means that a government agent or entity must be the cause of the actual or threatened injury b. the injury asserted may be to an environmental. the injury-in-fact must be fairly traceable to the government action complained of i. or be imminently threatened with suffering. in other words. injury-in-fact a. can include “noneconomic” injuries 1. For the D. religious. particularly common in “citizen suit” provisions for enforcement of environmental and voting right laws 2. the court must be able to issue a decree which will directly redress the injury asserted by the P . “Congress may create a statutory right which can confer standing to sue even where the P would have suffered no judicially cognizable injury in the absence of a statute” Warth v Seldin 2. Flast v Cohen: taxpayers had standing to challenge federal expenditures for religious schools allegedly in violation of establishment clause ii. Constitutional aspects of standing (there are 2 requirements of standing that must always be met to satisfy the “case or controversy” requirement of article IIII) 1. an injury in fact as a result of the D’s action i. the question is whether he can raise an issue as part of a defense (ie: does D in a crim case have standing to object to the introduction of evidence that was allegedly illegally seized?) iii. Injury can be based upon i. Violation of constitutional rights 1. traceability/redressability a. Violation of statutory rights 1. in constitutional cases (because of the fact that the government is the D). remedy is mandate of equal treatment 2. US v Students Challenging Regulatory Agency Procedures: damage to “recreational interests” was sufficient injury 3. Friends of the Earth v Laidlaw Environmental Services: P state sufficient injury by alleging pollution damages to areas they used c. the would be litigant must have suffered. Hecker v Matthews: gender based discrimination in violation of equal protection clause sufficient injury.ii. or other non-economic interest 2. who is already in court. if P is adversely affected by a gov’t action. a non-economic injury may qualify to confer standing if the injury is specific to the P a.

desegregated schools would result ii. cases illustrating failure of redressability i. standing embraces several “judicially self-imposed” (sometimes called prudential) limits a. P may only assert P’s rights – 3rd party standing generally prohibited – exception – close relationship and 3rd party unable to sue 3. these barriers reflect institutional concerns such as docket control and judicial insistence on the parties having a personal stake in the outcome of the controversy b. separate c. SC found the circumstances involved in this case didn’t warrant federal court adjudication i. Allen v Wright: parents of black school children challenged federal tax exemptions for racially discriminatory private schools. Prudential aspects of standing 1. no generalized grievances a. claim must be within zone of interests law was intended to protect b. “prudential” barriers to standing a. historically articulated as a prudential concern. complaint must fall within the zone of interests protected by law invoked 2. and the bar to 3rd-party standing 2. in Allen the SC seemed very skeptical.b. Must show that injury was or will be “fairly traceable to the D’s allegedly unlawful conduct” Allen iv. litigant may not raise another person’s rights b.” Allen ii. two examples of judge-made prudential barriers to standing are the bar to a federal taxpayer challenging a spending measure by Congress. that even if the IRS was ordered to do what Ps requested. The injuries was “fairly traceable to the asserted unlawful conduct of the IRS” ii. relief against that D is likely to redress the injury 2. but the two requirements are. causation and redressability are closely related 1. but post-Lujan might be a constitutional requirement 4. in fact. if a D has caused or will cause an injury. City of LA v Lyons: said that injury from past choke hold would not be redressed by injunction prohibiting future choke holds d. in addition to the constitutional requirements for standing there are also judge-made. no adjudication of generalized grievances c. Analysis 1. standing also has “a core component derived directly from the constitution” – sometimes called constitutional limits . the injury P has suffered or will suffer must be “likely to be redressed by the requested relief. Causation requirement i. redressability requirement i.

The SC reasoned that the establishment clause is a specific limitation on the taxing and spending powers of Congress 1. Valley Forge Christian College v Americans United for Separation of Church and State: Flast distinguished: this was not an expenditure but a . congress is acting 2. applies to prohibit citizen or taxpayer suits based upon a generally held constitutional or statutory right 2. a federal taxpayer has standing to challenge an incorrect tax bill. SC has consistently refused to extend Flast. who must show direct injury ASARCO v Kadish iii. under the spending power 3. constitutional limits a. Flast v Cohen: federal taxpayers challenged federal expenditures for religious schools. generally. if all 3 then there is standing 2. Limitation on taxpayer suits does not apply to municipal taxpayers i. appears to be limited to article 1.3. must be a personal injury (injury) b. section 8 expenditures alleged to violate religious clauses i. injury must be fairly traceable to the D’s allegedly unlawful conduct (causation) c. or to attempt to recover taxes paid under protest ii. Frothingham v Mellon: the general rule is that federal taxpayers don’t have standing to challenge expenditures of money by Congress a. or is challenging a spending measure 1. 3 elements must be shown 1. The reason for this rule is that the interest of any one federal taxpayer in how congress spends money is too remote and speculative to qualify as the specific injury in fact required for standing b. SC said no standing: P “must be able to show…that he has sustained or is immediately in danger of sustaining some direct injury…and not merely that he suffers in some indefinite way in common with people generally c. Taxpayer standing i. First. to establish religion a. But the municipal exception doesn’t apply to state taxpayers. standing failed on causation and redressabililty – parents suing wrong parties – the IRS – and SC couldn’t fashion a remedy c. be careful about whether a federal taxpayer is challenging a tax. SC ruled that a federal taxpayer does have standing to challenge a congressional expenditure on the basis that it violates the establishment clause of the 1st amendment a. no generalized grievances 1. must be likely that injury will be redressed by the requested relief (redressability) 4.

Congressional power to create standing (zone of interest) i. Lujan v Defenders of Wildlife: issue was whether Congress could convert public interest in proper administration of laws into an individual right that would permit all citizens or a subgroup of citizens who suffered “no distinctive concrete harm” to sue 1. this means that a litigant might have standing to seek constitutional review in state court of a matter where there would be no standing in federal court iv. “the party seeking review must himself have suffered an injury” Sierra Club v Morton 3. congress may broaden the categories of existing injuries that will support standing a. Mootness can be raised at any point in proceedings. either by a party or by the court on its own b. or religious values may also be protected iii. the case will be dismissed as moot because there is nothing more the court can do for the P . the interest protected by congress are not only economic ones. likelihood of injury must be immediate. An actual controversy must exist at all stages of the litigation i. and who are within the zone of interests to be protected by the statute or constitutional provision in question ii. state courts are not bound by article III standing rules 1. and it was not a congressional action but an agency action a. transferring from president to courts to duty to execute the laws 2. recreational. A federal taxpayer will not have standing based on that status unless he is challenging an exercise of the spending power by congress d. but congress cannot create an injury where none has been personally suffered i. can’t be speculative or too far off in future 4. Association of Data Processing v Camp: the “zone of interests” language is a term of art which applies only to congressional grants of standing 1. Mootness a. a person will not have standing to challenge a government action solely because he is a citizen who is unhappy about how the government is functioning XXXI. Scalia said to do so would violate separation of powers.disposition of property. the case is moot and should be dismissed ii. If events after the litigation begins resolve the controversy. If the P’s injury in fact ever goes away. aesthetic. Under the mootness doctrine. conservational. Congress does have power to confer standing on parties who meet the article III injury in fact requirement. general citizen standing a. an article III case or controversy must exist throughout the entire litigation process i.

if no injury. yet evading review. or could say the matter is not yet ripe . since the only asserted injury. capable of repetition. failure to be admitted. DeFunis v Odegaard: white law student challenged U of Wash’s affirmative action admissions program as a violation of his equal protection rights i. note that “capable of repetition” means as to this P. collateral consequences 1. no standing ii. if class certification is denied. if injury has not yet occurred. voluntary cessation of illegal activity by the alleged wrongdoer is usually insufficient to make a case moot iii. class action lawsuits i. case is not mooted because names P’s claim is mooted US Parole Commish v Geraghty ii. not just as to some other person 4. when the case got to the SC. Standing: concern is whether any injury has occurred. a court will not declare a dispute moot if the controversy is capable of repetition. His asserted injury in fact was his failure to be admitted to law school. yet evading review 1. applies where the facts are likely to change within the time required for litigation to be completed 2. name P retains a sufficient personal stake in class certification to continue case even after named P’s claim is resolved iii.c. a claim is not moot if some collateral consequences of court action will continue even though the main issue has been resolved f. he had registered for his final term of law school a. other members of class or would-be class have ongoing personal interest as well XXXII. however during the suit a state court ordered him admitted 1. voluntary cessation of illegal activity 1. Ripeness is concerned with the timing of the injury – when is lawsuit appropriate i. only applies if it can be said there is “no reasonable expectation that the wrong will be repeated” US v WT Grant 2. in addition. had been taken care of the SC dismissed his case as moot d. classic example is pregnancy Roe v Wade 3. in relation to the P or a member of his certified class ii. theory underlying the mootness doctrine i. exceptions to the mootness doctrine (3 main exceptions) i. Ripeness a. the idea here is that a federal court will exercise its jurisdiction only if it is able to provide relief to a litigant in a contested lawsuit e. under this exception. could say no injury so no standing 2. Ripeness asks whether an injury which would be sufficient to support standing has occurred yet 1.

hardship to the parties if pre-enforcement review is denied – seems tied to constitutional injury requirement – called a “costly dilemma” a. General information (the fats are very important in these cases) i. asserting that to do so would be equal to issuing an advisory opinion ii. court could only speculate as to kinds of activities that might be engaged in b. whose case was accepted) had actually suffered any injury other than a subjective “chilling effect on their speech. State Action a. a separation of powers issue d. ripeness more likely satisfied XXXIII. if there is no one who has suffered an actual injury. but there is a chance it will be ii. laws may have a chilling effect on speech iii. question is when a person may seek pre-enforcement review of the statute or regulation iii.iii. since none of the employees (save one. court has historically allowed pre-enforcement challenges to laws regulating speech activities ii. Main concept: generally. criteria for ripeness i. United Public Workers v Mitchell: the SC refused. which prohibited federal executive branch employees from participating in political campaigns i. person may raise a facial challenge to a speech regulation prior to prosecution e. issue here is usually the hardship caused by forcing a choice between potential prosecution vs engaging in activity that may be lawful 2. the main question in the area of ripeness is whether anyone has suffered actual or threatened harm by the application of a statute 1. court may decide constitutionality when litigant’s rights require protection against actual interference a. Abbott Labs v Gardner: articulated 2 criteria 1. seeking what amounts to an advisory opinion 2.” the SC refused to hear the case. most often arises in cases involving enforcement of statutes or regulations i. threat of possible interference with rights does not make a justiciable case or controversy 3. general rule is that pre-enforcement review is disfavored c. state action – some action by the state or a person acting for or as the state – is a prerequisite to constitutional liability. fitness of the issues for judicial decision – seems more like a prudential consideration a. first amendment claims i. the case will not be ripe for decision b. analysis 1. or a specific threat of injury. The Constitution does not apply to private conduct . if issues are primarily legal and can be resolved without much factual record. to hear a challenge by federal civil service employees to the Hatch Act. statute or regulation has not been enforced.

legislative. 3 significant lines of cases a. etc) ii. they are direct agent of the state) b. how you go after private actors because of their close relationship with state (state. What is state action? 1. local. Three significant exceptions 1. or facilitated the conduct – may rise to the level of state action i. encouraged.traditional government functions (ie. history 1. Voter initiatives 1. Financing and subsidies 1. and judicial action at all levels – federal. a central feature of all constitutional law iv. judicial and law enforcement activities 1. Civil Rights Cases established the state action requirement that is. or facilitates private conduct a. Shelley: judicial enforcement of racially restrictive covenants 2.1. even if acts are unauthorized . main concept: private conduct that is excessively entangled with the state – the state has affirmatively authorized. government functions doctrine . Burton: symbiotic relationship 2. Reitman: anti-fair housing initiative c. federal. school cases 3. Rendell-Baker: substantial subsidies for private schools not enough (no state action) iv. police & fire protection) i. election cases c. Norwood: subsidies that promote racial discrimination (improper) 2. private property b. Moose Lodge: regulation not enough iii. state action doctrine established after ratification of the 14th amendment 2. entanglement doctrine – state affirmatively authorizes. Licensing and regulation 1. government officers acting under color of state laws. Edmondson: peremptory challenges in civil cases ii. 13th amendment (slavery) – applies to private action as well as state action 2. and local 2. Court more willing to find state action when overt racial discrimination iii. encourages. Lugar: prejudgement and self-help processed 3. state. close relationship between actor and the government (ie. executive. private actor performs functions traditionally and exclusively performed by government 1. today.

the court was trying to protect state sovereignty rights i. government-created corporate bodies can be state actors v. or any place subject to their jurisdiction” ii. exception #2 . and therefore Congress may not reach such activity under section 5 a.3. Amtrak 1. the more the state power contracts c. legislative. executive. History i. what is state action i. this statute was found unconstitutional but the same statute was constitutional in 1964 i. the requirement becomes an issue when a private actor harms someone in such a way that a constitutional issue would arise if the harm were inflicted by a government actor. Civil Rights Cases interpreted narrowly (see above) f. case law is conflicting – look at facts/function/board members. Whether the injury caused is aggravated in a unique way by government intervention c. regardless of who acts to impose. government officers acting under color of state law 1. and judicial action at all levels of government ii. which prohibited racial discrimination in places of public accommodation 1. exception #1 – 13th amendment i. Whether the actor is performing a traditional governmental function that has been engaged in exclusively by government iii. General analysis of state action questions (3 main factors) i. etc to determine e. government-created corporate entity may be state actor (ie. the purpose of the 14th amendment is to give equal rights to newly freed slaves b. officer is a state actor even if the conduct is not authorized by law iii. sometimes. outlaws slavery and involuntary servitude. reasoning Congress used a different power source (the commerce clause) d. To what extent does the private actor rely on governmental assistance and benefits ii. the broader the federal power.performing an exclusive governmental function . except as a punishment for crime…shall exist within the US. except as criminal punishment iii. Civil Rights Cases (restrictive view of 14th): the SC ruled that section 5 of the 14th amendment didn’t give Congress the power to pass the Civil Rights Act of 1875. “Neither slavery nor involuntary servitude. if acting in an official capacity. held: that the 14th amendment deals only with state action. invasion of individual rights by private persons is not within the scope of the amendment. and when there is some reason to impute government action to the private individual who cause the harm b.

Private property 1. a Jehovah’s Witness. No state action is involved when the owner of a privatelyowned shopping center excludes speakers from the center iv. etc because of it that can be sued under the 14th a. so the 1st amendment would apply there as it would in any town i. here they were providing fire. black resident in TX sued officials of the Dem party who refused to allow him to vote in primary election of Dem party a. reasoning that the town was the functional equivalent of a municipality. Union picketing on shopping center premises could not be enjoined 2.i. government involvement in a racially discriminatory bequest 1.SC found state action. Issue: is company town a state actor . Marsh v Alabama: M. Smith v Allwright: Smith. sidewalk. If a company town performs the traditional functions of a municipality. was handing out information on premise of company-owned town against the wishes of management. water. SC found state action on the part of the Dem part when it excluded Smith/others from voting i. Delegation to a political party of the power to fix elector qualifications is delegation of a state function 1. She refused to stop and was arrested/convicted of trespass a. the court will find state action when a private party is performing a function that has traditionally been performed by government 1. Amalgamated Food Employees Union v Logan Valley Plaza: court was unsure how to treat shopping centers. SC overruled Logan and held: no state action when the owner of the privately-owned shopping center excluded the picketers i. Hudgens v NLRB: union members began to picket their employer’s store in a shopping center. due process – liberty interest ii. are they like central business districts like in a city or something different a. Operation of the town was “essentially a public function” and was “subject to state regulation” iii. but left when told they would be arrested for trespassing. in recent years the court has insisted that the function be one that has been exclusively performed by government ii. Elections 1. it will be treated as a state actor 1. Privately-owned shopping center 1. and they brought 1st amendment action claimed shopping center was functional equivalent of a municipal shopping district a. running election is a state responsibility not individual thus they can’t discriminate – thus can’t discriminate v. Evans v Newton: senator devised land for a whites-only park .

the constitutional violation was that there was a willing seller and buyer and the residents were trying to enforce the racial restrictive covenant which violated the 14th amendment i. SC: park was municipal in nature. guaranteed by the state or not. highly regulated. A public utility even if granted monopoly status by a state. w/o providing notice or hearing (thus Jackson loses and Metro treated as a private entity) a. essential service. monopoly b. Monopoly not enough to create state action by itself. Peterson v Greenville: reversed trespass convictions of blacks refused service at lunch counter a.a. is not a state actor c. “sit-in” cases – similar to Shelley 1. Clear violation of the 14th amendment 2. and thus the state court directly prevented the black buyer from moving into the house a. Analysis: i. thus state action that aided private parties to perform public function on a segregated basis implicated state in conduct proscribed by 14th amendment i. State-granted monopoly 1. bottom line for restrictive covenants state action when P seeks enforcement of the covenant or attempts to recover money damages iv. SC found no state action when heavily regulated electric company cut off her service. Running park typically done at state level vi. state action was present because state court judges ordering the white sellers to comply with the terms of the restrictive covenant. State involvement/encouragement i. Bell v Maryland: also involved a restaurant sit-in . over a particular service ii. Barrows v Jackson: similar to Shelley but they sued for monetary damages for breach of the restrictive covenant 1. dissent – there is a strong argument for state action a. state action found by SC iii. Highly regulated alone is not enough to create state actor status 1. Shelley v Kramer: SC found state action when a state court issued an order enforcing a restrictive covenant in which white homeowners agreed not to sell property to black buyers 1. trying to enforce in court (where the court is a state actor is not good) ii. the racially restriction covenant by itself is fine. Jackson v Metropolitan Edison: J filed action that her due process rights were violated. Supplying utility service not traditionally the exclusive area of the state – not it appears that’s must be exercise by private entity of powers traditionally exclusively reserved to the state g.

and was leased from the authority. Hunter v Erickson: declaring unconstitutional an amendment to city charter repealing open housing laws and requiring voter approval for new open housing laws i. was unconstitutional iii. Roemer v Evans: CO constitutional initiative repealing laws that prohibited discrimination against gays and preventing enactment of new laws. Government so entangled there was a “symbiotic relationship” (mutually beneficial) sufficient to create state action i. Parking facility used by tenant’s customers ii. Violation of the 14th amendment thus state action ii. Analysis i. Exception #3 – entanglement i. He asserted state action by virtue of the lodge’s liquor license which is regulated by the liquor authority a. Lodge was private on private land and privately run – normally 14th amendment wouldn’t apply b. SC looked at all the connections between the state and the restaurant and found the 14th amendment applicable. Government benefited from tenant’s revenues b. No symbiotic relationship in Moose Lodge because it was on private land. Moose Lodge v Irvis: SC found no state action simply because a state grants a liquor license to an establishment. Reitman v Mulkey: SC found state action in a private party’s refusal to rent an apt to someone because of their race. Subsidies 1. etc – thus no state action ii. Grant of liquor license and extensive state regulation not sufficient entanglement 1.a. Plurality said state may not use criminal trespass laws to frustrate constitutional equal protection right h. SC found state action on the part of a private restaurant owner who refused to serve minorities. a state granted a liquor license to a private bar doesn’t make the bar a state actor 2. Norwood v Harrison: state action where government gave textbooks to private schools that discriminated on account of race . early cases found that state subsidies resulted in state action: a. State initiatives i. SC agreed with Cali SC that provision in state constitution involved state in racial discrimination (the state had take affirmative action designed to make discrimination legally possible) a. Burton v Wilmington Parking Authority: The restaurant was located in a state-owned parking authority. a. A provision of Cali constitution authorized racial discrimination in the sale or rental of property 1. Licensing & Regulation 1. Irvis was refused service at a local Moose Lodge because of his race.

Judicial action: prejudgment and other self-help 1. and regulated by federal law i. partially federally funded. Lebron v National RR Passenger Corp: Amtrak was part of government because it was created by federal law. more recent cases have refused to find state action despite heavy subsidization a. USOC not part of government even though chartered by Congress. Symbiotic relationship ii. Absence of public officials distinguished other prejudgment attachment and self-help cases ii. San Fran Arts & Athletics v US Olympic Comm: USOC say gay can’t use Olympic a.b. Modern development i. the school being heavily regulated by the state. Blum v Yaretsky: no state action by heavily state regulated nursing homes where 90% of residents’ medical expenses were paid by state and state also subsidized operating expenses j. No public officials remained in suit as Ds (after sheriff removed) i. schools a. Corporate entities 1. Gilmore v Montgomery: state action where city gave discriminatory private schools exclusive access to city’s parks and other recreational facilities 2. Subsidy 2. Rendell-Baker v Kohn: private school received almost all of its funding from the government. There was no government action by virtue of Congress giving the USOC the power to control the use of the word “Olympic” 2. had a board appointed by president. and public funds accounting for 90% of school’s operating budget ii. SC used the 4 factors from Blum to determine school was not state actor (Exam: even with 4 factors without racial discrimination difficult for state action): 1. SC: it was just a private remedy between private parties . Rendell-Baker v Baker: no state action where state funds accounted for 90-99% of private school’s fund b. Fired a teach for speech-related activities i. Flagg Bros v Brooks: SC found no state action when a state statute authorized the owner of warehouse to sell the belongings of someone who didn’t pay bill a. Public subsidies 1. SC: there was no state action despite nearly all the students being referred to the school by government agencies. Public function 4. Extensive regulation 3. and was substantially federally funded iii.

The government has no obligation to protect a person from harm by another person 1. no state action. State and federal laws authorize peremptories b. no state action exists when a state authorizes an owner of a warehouse to sell the belongings of someone who didn’t pay his bill iv. by enforcing the peremptory challenges. there will be state action. if a person is injured while under the custody or control of the state ii. the court also concerned with taking away the rights of the father iii. A state’s failure to protect an individual from violence by a private party doesn’t constitute a violation of the due process clause i. found some corroborating evidence. Edmonson v Leesville Concrete: applied Lugar analysis to extend Batson to civil cases a. involves state action i. The use of peremptory challenges. no state action where police fail to enforce order that results in death of two little girls – murders committed by father – not police a. Cited Shelley 2. State action was present because the state court. No state action when injuries are inflicted by private parties 1. Court said illegal to racially discriminate for challenges i. no due process property interest in enforcement of order . in a criminal or civil case. Government heavily involved in jury selection c.1. the mom loses because the father is a private actor not the state 1. DeShaney v Winnebago County Dept of Social Services: the SC found no state action when a state social worker investigated allegations of child abuse. significantly involved itself in invidious racial discrimination v. no recourse against Flagg iii. She said she has a property interest in the enforcement of the restraining order and that she had been deprived of it in violation of the due process clause of the 14th amendment 1. Peremptory challenges in jury selection 1. Caste Rock v Gonzales: wife brought civil rights claim against CR for failing to enforce a restraining order agt her estranged husband. bottom line she isn’t entitled to compensation vi. Batson v Kentucky: held that equal protection prohibited state prosecutor from using peremptories to racially discriminate a. but left the little boy in his home where he was severely beaten by his father and suffered permanent brain damage a.

(1) Is there a liberty or property interest? 1. either written or verbal (by government) 2. about the process no the substance iii. expectation v entitlement test – right to have property i. three questions i. Other interests example (natural rights): right of marriage ii. Procedural due process – flows from 5th amendment if federal government is involved. Current test: whether government has done something to create entitlement to a property interest (Roth v Board of Regents) 1.she could have raised scrutiny by making argument liberty interest in right to parenting as opposed to rational based scrutiny where she was arguing in property interest 2. Overview i. what is a liberty interest? (receives strict scrutiny) a. . Fundamental example: free speech d. Don’t confuse substantive due process (ie. liberty. welfare and other public benefits ii. In general. liberty. Very broad c. like i. or property interest: a. Includes fundamental rights and other liberty interests not subject to elevated scrutiny b. A insubstantial impairment of an interest will not trigger procedural due process c. either in writing or in hearing (sliding scale) 3. created by state or federal law b. liberty. main concept: the government may lawfully deprive a person of life. Simple negligence is not enough b. what is a property interest: a. license to engage in trade or profession 2. Procedural due process only triggered if there is a deprivation of a life. or property only if it follows reasonable procedures to minimize the risk of an erroneous or unfair deprivation c. rational basis or strict scrutiny) with procedural due process) iii. and 14th amendment if state is involved 1. neutral decision-maker or tribunal (like the detainee cases) b. opportunity to respond. includes things you may not think of. Test used to determine whether there is a protected property interest i. or property ii. (2) Has there been a deprivation? 1. notice. Procedural Due Process a. (3) What process is due? d. The due process clauses are intended to ensure that a government uses a fair procedure when it singles out an individual for a deprivation of life. a person doesn’t have a property interest in the enforcement of a restraining order unless the state specifically creates one by statute XXXIV. Key elements of procedural due process 1.

liberty or property interests – 5th & 14th amendments 2. what is the risk government will make a mistake c. but if emergency (an exception. Risk of erroneous deprivation c.R. pre-deprivation or post-deprivation process 2. This test is used to determine how much procedural due process protection is required f. Mathews – 3 part test (balancing test): a. (3) what process is required? 1. Government’s interest iii. Nature of the individual interest b. Before the government takes the action. or property interest? 1. Right – “If” 1. “Nature – not weight” 3. Exception vs. liberty. Test is 3-part Matthews v Eldridge balancing test (used in the Hamdi case): a. Private interest b. if yes. emergency – hearing after government action – Mallen 3. Basic procedural due process analysis involves 3 questions: ii. Courts tend to be deferential ii. (1) is there a life. Risk of deprivation and benefit of additional procedures i. Nature of the governmental interest i. go to question 3 iv. “Flexible due process” 2. something less 3. if yes. thus no income i. go to question 2 iii. life. example: been teaching for 10 years and contract is not renewed – you have a right to the property e. Scope – “How much” 1. The greater the harm the more procedural due process they will receive b. formality of process a. – hearing before the deprivation a. national security) 2. ie. Timing – “When” 1. if no. G.Gary Panthers ----. if no. Basic Analytical Model i. full evidentiary hearing vs. then no procedural due process required 2. Goldberg ----. Roth & Perry ii. then no procedural due process implications 2. 3 Dimensions of due process (instead of analytical model – use one or the other) i. She is entitled to full blown hearing .Gross a. (2) has there been a deprivation of that interest? 1. Entitlement 4.a. Goldberg: most harm because here sole support was her welfare check they were going to take away.

Gary Panthers: in the middle 3. Just entitled to “some kind of hearing” d.c. find where on the spectrum client is and argue level of procedural due process allowed . Gross: school suspension – just entitled to school hearing to ensure they have the right person to suspend i.

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