Constitutional Law I Outline Overview A. Federalist Paper a. Writers i. Hamilton, Madison, and Jay b.

Articles of Confederation – the first code of law in the US after the American revolution i. The weak central government did not have the ability to 1. Lay taxed or to regulate commerce c. The constitution convention happened in 1787 in Philadelphia d. Anti-federalist – opponents to the constitution which wanted to keep the power to reside with the state i. Did not want a strong central government ii. Sam Adams, George Mason, Richard Henry e. Constitution – top legal authority for establishing a government f. A republican form of government – elected officials represent the people (representative form of government) i. 9 states approval were needed in order to ratify the constitution g. A true democracy - every person has an equal vote h. Connecticut Comprise i. Bicameral legislative structure 1. Senate (all states get 2) 2. House of rep (proportional to the population of the state) i. Shay’s Rebellion in MA j. Separation of power – the way the Constitution is written it defuses the power between three branches of government. Which allows each branch to constrain the powers of the other – a series of checks and balances k. Political philosophers – Locke and Montesquieu B. Constitution a. Article I Congressional Powers i. Six year senate term – a check on the house of representative. 1. The house was thought to act more quickly the longer term for the senate allows the senate to have a more cooler calmer deliberation process b. Article II Executive Powers i. Presidential Veto Power and Strong Executive 1. This is a check on the legislative branch 2. He is our overseas representative c. Article III Judicial Branch Powers i. Judiciary Safe Guards 1. Their salary cannot be reduced 2. They have a life long term (save impeachment) 3. They are nominated by the president and not the people d. Constitution Powers are Enumerated powers v Implied Powers i. The necessary and proper clause (number 17) which gives congress the power to effectuate and carry into law e. Implied powers i. A structural inference that establishes implied powers in the constitution C. Key Constitutional Clauses a. Guarantee Clause – US shall guarantee to every state in this union a republican form of government b. Establishment Clause – The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” c. Privilege and Immunity Clause – Art 4, §2 - "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." 1

i. This clause protects fundamental rights of individual citizens and restrains state efforts to discriminate against out-of-state citizens d. Equal Protection – the 14th amendment prohibits states from denying any person within its jurisdiction the equal protection of the its laws D. Two primary themes of this course a. Separation of powers – the horizontal relationship between three branched of federal government b. Federalism – the vertical relationship between federal government and States E. Types of Scrutiny a. Strict Scrutiny (Dormant Commerce Clause) i. Ends - Compelling state interest (critical) ii. Means - Narrowly tailored (for this specific purpose) iii. Burden - on state discriminating b. Intermediate Scrutiny (privilege and immunities, contract Clause) i. Ends - Substantial state interest (important) ii. Means - substantially related to the gov't objective 1. There is a nexus between the ends and the means iii. Burden - on state discriminating c. Rational Scrutiny (Spend Power) i. Ends - Legitimate reason for state interest ii. Means - Rational reason iii. Burden - on plaintiff Article III - Judicial Powers A. Judicial Review a. Scope - Art. III provides the basis for and scope of the federal judicial power i. FJP is vested in one Supreme Court and such inferior courts as congress sees fit to establish ii. Original Jurisdiction 1. JP shall extend to all Cases - arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority 2. All cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party a. When a state sues a state b. Between 2 or more states c. Between citizens of different states (diversity) 3. This can be neither expanded or diminished by statute iii. Case in Controversy 1. There must be an actual dispute (at the time of filing) 2. In which there is an injury in fact (the π has suffered or is about to) 3. As a result of the governments action (traceability) iv. Appellate Jurisdiction 1. SC has jurisdiction over all cases coming from lower federal courts and from state courts as long as the state courts involve a federal question v. Ways to Appeal to the SC 1. By statute - The SC is allowed to review the lower court as a matter of right (appeal) a. An appeal as a matter of right may only be taken to the SC from decisions of 3 judge courts 2. Writ of Certiorari – All cases from state courts go the SC via a petition for a WoC a. The SC will only review a final order form that state highest court 2

Judicial Review – Establishment i. The supreme court has the power to review acts of other branches of the federal government as well as decisions from state court 1. The SC is the ultimate arbiter of constitutional powers and rights 2. Judicial review is an implied power – it is not in the constitution ii. Marbury v Madison (Appointed as justice of the piece but President Madison did not uphold the appointment) 1. Established judicial review (implied power) – a. It is empathetically the province and duty of the judiciary department to say what law is b. The supremacy clause (art IV, §2) declares the Constitution and those acts of congress made pursuant to it the supreme law of the land i. So the SC must determine when such acts are actually made pursuant to the constitution 2. So if Congress has passed a law and that law is not in line with the constitution the SC must review that law and invalidate it iii. Cooper v Aaron (1985 – Little rock Gov refused to desegregate the schools – Federal injunction and national guard sent to enforce rule) 1. This case clearly establishes that the constitution is the supreme court of the land. 2. No state or state official may annul the judgments of the courts of the US iv. Cohen – (VA Lottery tickets issued w/congressional authority sold in DC – JR of state court decision) 1. JB permits review of criminal cases v. Martin – (British land owner in the US pursuant to a treaty – VA State court gave the land to a US citizen) Rule - Article III extends Supreme Court’s appellate jurisdiction to state court decisions. 1. This rule is subject to the exceptions and regulations as congress may prescribe – so long as a federal question was presented on appeal 2. SC appellate jurisdiction over state courts decisions involving questions of, federal law/ constitution/ treaties, is necessary to ensure national uniformity a. We don’t want multiple different interpretations of Constitution, a federal statute or treaty (their original jurisdiction) B. Limitation on judicial Review a. Political Question i. Main Concept: Political questions, meaning those questions that are committed to another branch or those which the judiciary cannot or should not decide, are nonjusticiable 1. Nonjusticiable – not able to be resolved in a court of law 2. These question should be decided by the political branches of the federal gov’t ii. A separation of powers issue 1. Constitution places responsibility elsewhere 2. Courts are not competent to decide iii. Two types of political question 1. Textual (AKA constitutional) – Questions which the constitution explicitly gives to Congress or the president for resolution a. the text of the constitution suggests that another branch should decide b. Here look for specific constitutional provision which gives power 2. Prudential – lack of judicially discoverable or manageable standards - “aka too hot to handle”

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Look for some separation of power reason why the federal court should not hear this like a decision already made by congress/president (the extent of their power) i. E.g., the president sending troops to war iv. Nixon v US (impeachment of US Chief Judge – through HoR and Senate – senate use a committee of senators not the super majority) 1. Textual approach – the constitution clearly gives the senate rather than the courts the power to decide the rules for an impeachment trial 2. Note: You need majority to impeach (HoR) and 2/3 to convict (senate) v. Goldwater (president power to terminate a treaty – constitution is silent) 1. This was a political question as it involved the extent of presidential authority in foreign affairs and therefore was best left to for resolution by congress and the president 2. Prudential – too hot to handle vi. Regulating the Militia 1. Gilligan – (students asked the SC to say when the militia can use extreme force on protesters) a. SC held that the constitution Art. I, § 8, Cl. 16 – grants Congress the responsibility for organizing, arming and disciplining the national guard with certain responsibility reserved for the States (totally political in question- Textual) b. Federal Courts do not have the knowledge or expertise to formulate an opinion on this vii. Judicially Manageable Standards 1. Vieth - There are no judicially manageable standards to determining when patrician political gerrymanders of violating districts violate the constitution a. Gerrymander - To divide (a geographic area) into voting districts so as to give unfair advantage to one party in election i. Gerrymander could violate the constitution if they went too far in deliberately advantaging the candidates of one party over the other b. Prudence i. The political question thought functionally necessary, is something that cannot exist within the four corners of Marbury 1. The courts have an unyielding duty to apply the law in every case properly before them c. Baker Factors i. Lack a judicially discoverable or manageable standard to resolve it; 1. They aren’t interpreting the law here, they are creating the law ii. Impossibility of a court deciding the case without an initial policy decision by some other branch of government; 1. A dispute between congress and the president is not ready for judicial review unless and until each branch has taken action asserting its constitutionals authority iii. The need to adhere to political decision already made; and iv. The potential embarrassment form multiple pronouncements on the same issue d. TO HOT TO HANDLE ISSUES (prudential) i. Foreign Relations 1. (whether or not a treaty has been terminated) ii. Dates and Duration of Militia Activity 1. (litigating the constitutionality of desert storm) iii. Validly of Enactments 1. (ratification periods for proposed amendments to the constitution) Judicial Review – Discretionary Review 4

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Art III says that judicial power shall be vested in on supreme court and in such inferior courts as the Congress may ordain or establish b. Note 1. A federal question cannot be raised for the first time on federal appeal ii. Basically said that the SC has discretion over what cases they hear. Ex Parte McCardle (1869 – Racist editor arrested in Miss by military government) i. Only about 30% of state cases make to the SC ii. Can SC change the result of the case by ruling on the federal question? a. Freedom of religion is a textually guaranteed right of the constitution so this jurisdiction cannot be restricted 5 a. Judicial Stripping i. Adequate and Independent State i. They don’t have to say why the denial happened. Congress possesses undisputed power to regulate the jurisdiction of the federal courts – Jurisdictional Restriction i. ii.Congressional Regulation a. . Writ of Certiorari still works even if writ of habeas corpus does not. Reserve your objection/federal issue on record 1. Independent: state law ground is independent if it does not depend on resolution of federal law a. i. Note: The federal court will not issue advisory opinions – there must be live cases before them before an opinions is given c. Adequacy: state law grounds are adequate if decision on issue of federal law cannot change the outcome 2.involved an illegal S&S – Adequate and independent State grounds) ii.e.” iii. In some cases the State court affords more protection than the federal court here the SC cannot take the case iii. Stripping the Federal courts power to deal with issues ii. Judicial Review . Two big areas that Jurisdictional Stripping have arisen 1. Court confirms that the congress has power to make exceptions to the SC appellate jurisdiction ii.Two rout of appeal to the US SC i. As a litigator you must i. State Constitution gave greater protection then the US Constitution – No grounds for the SC to review e. c. Under the constitution. Adequate and independent State Grounds – Factors 1. Maryland v Baltimore Radio (1950 . And the denial is not indicative of how the court would have ruled D. Congress if it chooses does not need to create any lower federal courts at all ii. Has the highest appellate court in the state ruled on the case? 2. Adequate and independent state grounds – the case must not have been decided primarily on state law (the federal question is not the primary issue) 1. If YES to all there is no adequate and independent state basis for the decision the SC may take the case b. decided on bases of state constitution or state statute d. Originate in state court = State trial court > State Court of Appeals> State Supreme Court > Petition for a Writ of Certiorari (Federal question) > US Supreme Court 1.) i. Art III says that the SC appellate jurisdiction shall be subject to “such exceptions as congress shall make. You must establish a federal issue – you must identify a legitimate federal question iii. Michigan v Long (pg 53. Prayer in School and Abortion a. Does the case involve both a federal and state law? and 3. Originate in Federal Court = US District Court> US COA> US Supreme Court b. Authority Stripping 1..

prevents adjudication in courts of generalized grievances better suited to representative branches 1. Elements i. Limitations On Judicial Power and Review – Advisory Opinions a. Ripeness (When – are we in the court at the right time) iii. Federal Judicial Jurisdiction will exist if there is a federal question. A non binding statement of the law in response to executive or legislative inquires H. Big Three Limitations (Standing. Limitations On Judicial Power and Review – Standing a. that injury will be redressed (corrected/relieve) by a favorable decision. Limitations on Judicial Powers . Key Notes: i. Injury in fact -An invasion of a legally protected interest which is concrete and particularized ii. §2 definition of a case or controversy ii. Essential functions thesis i. The limits of Justiciability preclude the court from rendering advisory opinions b.b. Limitations On Judicial Power and Review – Constitutional a. Judicial limitations vs Substantive Directions i. and Mootness) i. In order for exception to the court’s jurisdiction to be constitutionally permissible under Art III the exception must not be such as will destroy the essential role of the SC in the constitutional plan e. Traceability . Mootness (What – does the injury still exist) F.that there be a causal connection between the injury and conduct complained of so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court. d. A law suit must meet Art III. actual controversy i. Standing – Standing deals with whether the proper party is seeking to raise an issue in federal court (has nothing to do with the merits of the case) b. Diversity jurisdiction or Cases in Controversy b. Standing (who is the right party) ii. Advisory Opinion – these are opinions based on assumed or hypothetical facts that are not a part of an existing. Ripeness. There must be an actual dispute before the court. Precludes consideration of compliant that do not fall within the zone of interest protected by law Guaranteed right of liberty and privacy – places the abortion issue into the constitution 6 . Case or Controversy Requirement i. Justiciability (a term of art) – Meaning that the case is capable of being heard before the court i. brought by a π who has suffered (or about to suffer) a specific injury as a result of an identified government action G. Congress could not use its jurisdiction-stripping power on a selective basis to compel the courts to each unconstitutional results in particular cases E. c. Redressability .as opposed to merely speculative. Imminent – the injury is actual or imminent rather than conjectural or hypothetical iii. Third Party Exception ii. Standing . GR: Standing prevents a litigant from raising another person’s legal rights 1. iv.Prudential a.

Litigants are within the “zone of interest” of a statute if they are part of the class it was design to protect 3. Lujan v Defenders of Wild Life (Endangered Species Act – regulated only us action internally and not abroad – we plan to someday go there maybe) Limitations On Judicial Power and Review – Congressional Power to Create Standing a. 2. Heckler v Mathews (1988 – a statute that gave larger social security benefits to women than to men – equal protection) i. A federal taxpayer status alone will not give standing to challenge a spending measure by congress d. Prudential standing is satisfied when the injury asserted by a plaintiff arguably falls within the zone of interests to be protected or regulated by the statute in question. 7 . Standing question arises because it was not clear if the affirmative action program was the reason he didn’t get into school 2. Very narrow exception for expenditures in religion clause cases 5. A general grievance disqualification will apply when the harm is not only widely shared but also abstract and indefinite iii. plaintiff can only assert plaintiff’s rights a. athletic and economic interest d. US v Students Challenging Regulatory Agency Procedures (SCRAPS) (1973 – 5 students interested in a clean environment – railroad freight rates imposed by ICC) i. Prudential Requirement 1. Regents of the University of Cali v Bakke (white student said he didn’t get into school because of affirmative action) i. Allen v Wright (1984 –Tax exemptions for schools practicing racial discrimination – a stigmatic injury) They lacked direct personal injury i. When right invoked is that of equal treatment. Friends of earth v Laidlaw Environmental service (2000 – Holder of a CWA discharge permit . Rule: A π must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief ii. If suing a federal agency.was not in compliance with the rule) i. a result that can be accomplished by withdrawal or benefits from favored class as well as by extension of benefits to excluded class e. appropriate remedy is mandate of equal treatment. Limited exceptions for third party standing 4. Standing existed because the outgoing pollutant discharges directly affect the citizens-suit plaintiff’s recreational. No suits by taxpayers or citizens for “generalized grievances” a. claim must be within the zone of interests protected by the statute or regulation in question. Zone of Interest a. 6.I. A private person does not have standing to force the government to comply with the law when the person can show no direct personal injury resulting from the alleged failure of the government to obey the law e. Generally. Δ said rate would cause more trees to be cut and non-recyclable good might be thrown away in the forest – ruining the beauty of the forest c. Congress does have the power to convey standing on parties who meet the injury in fact requirement and who are within the zone of interest to be protected by the statue or constitutional provision in question b.

I was choked unconscious by the cops I want injunctive relief) i. Congress is acting b.J. An association may have standing to represent its own interest. Under its spending power AND c. Prohibition against asserting Third parties rights i. He had a case for the current injury but not for potential future injuries g. hurt the NAACP through a reduction of contributions. An association may have standing to vindicate an injury-in-fact suffered by the association itself 2. Exception to GR of Third party bringing the suit . the doctor could not assert his patients rights in challenging a state law prohibiting the use of contraceptives 2. NAACP v Alabama (AL governor wants the names of all of the NAACP members) 1.Three Factors for Litigants to bring actions on behalf of third parties a. GR: Tax payers do not have standing to challenge expenditures of money by congress 1. To establish religion iv. Court did not grant injunctive relief as it was too speculative that Lyons would be choked again in the future (immediacy) ii. of the chance to compete for every place in the entering class regardless of whether or not AA program ultimately caused his rejection f. giving him a sufficiently concrete interest in the outcome of the issue b. Father lacked standing as he did not have standing to assert the establishment clause rights on his daughter a. Here the mother had sole custody iv. Elk Grove School District v Newdow (challenge to the school starting each day with the pledge of allegiance including ‘under god’) 1. A tax payer has standing to challenge a tax but not to challenge how the money is being spent iii. Tileston v Ullman (1943 – Standing Doctor tried to assert his patients rights) 1. dues. The court said. If you want to bring an action against your municipality (really local level) than you have more at stake and a better chance at standing 8 . Key Notes: i. Standing does not allow a litigant to raise another person’s rights ii. and volunteers Limitations On Judicial Power and Review – Taxpayer Standing a. The litigant must have suffered an injury in fact. Holding: Bakke suffered injury though his deprivation. There must exist some hindrance to the third party’s ability to protect his own interest iii. Federal taxpayer spending to challenge a spending measure that establishes religion 1. The litigant must have a close relation (husband/wife. parent/child) to the third party and c. LOS Angeles v Lyons (1983 . ii. If the whole bases of your complaint is that you are a tax payer and you don’t like how congress is spending your money – you have no standing ii. The adverse effect on the associational ties of its members would in turn. Flast factors In order to have standing one must find that a. Powers v OH (1991 – defendant asserts the rights of a prospective juror for race discrimination) 1. on grounds of race.

Mootness a. and 2. Limitation of Judicial Power – Timing of Adjudication . gov when they were sufficient to prevent ratification 1. Rains v Byrd (1997 –the supermajority upheld the act) i. as violative of the establishment clause – failed FLAST factors K. .Tax payer has standing to challenged federal expenditures for parochial schools under the religion clause of the first amendment) i.) i.Frothingham v Mellon (1923 – A tax payer says that a federal statute providing funds to states undertaking programs to reduce maternal and infant mortality rates is unconstitutional) i. Flast v Cohen (1968 . Coleman v Miller (1939 – Member of the KS senate and house brought an action to nullify the KS legislatures ratification of an amendment to the constitution) i. A person asking the court to hold a federal act unconstitutional must be able to show 1. The respondents lacked standing as taxpayers or citizens to challenge. An actual controversy/injury . Here their votes were not given full effect c. An abstract institutional injury is not sufficient concrete to meet the requirement of an injury in fact b.must exist at all states of the appellate or certiorari review and not simply at the date the action is initiated 1. Mootness i. That the statute is invalid. Valley Forge Christian College v Americans United for Separation of Church and State (1982 – based on a federal statute the federal government transferees excess federal property to a church college which trained subtends for Christian service) i. ASARCO v Kadis (1989 . Holding: π has standing when he alleges that the congressional action under the tax and spend clause is in derogation of those constitutional provisions that operate to restrict the exercise of the taxing and spending clause d. Exceptions 9 b. GR: federal taxpayers do not have standing to challenge expenditures of money by congress ii. Must show injury in fact c. The legislators votes were given full effect and they simply lost the vote L. State taxpayers are treated the same as federal taxpayers in that as a GR they do not have standing in federal court to challenge expenditures of money by their state legislature c. The court said they had standing as the votes had been overridden – by the Lt. Standing to Sue in State Court a. Legislative Standing a. The court held that they member of congress act standing to challenge the constitutionality of the line item veto act 1. The court has consistently held that standing to sue in state court is governed by state law and not article III b. GR: Individual members of congress do not have standing to challenge the constitutionality of an Act on the basis that it dilutes their legislative power i. The interest of any one federal taxpayer in how congress is spending money is too remote and speculative to qualify as the specific injury iii. A state taxpayer would have standing in federal court to challenge a state legislatures expenditure of money to establish religion (under Flast) M.

You must have suffered an injury or it is imminent. Most powers of the legislative branch are enumerated in the constitution a.Capable or repetition yet evading review i. Two ways to invalidate a statute 1. no standing b. Any provision of the constitution which is a source of power for one gov’t branch may also serve as a defense against action by another branch of gov’t ii. Two Principles to apply to this analysis i.e. Π asserts that the legislature exceeded the scope of the power source relied on to pass the law 2. Poe v Ullman (1961 – CT law prohibiting use of contraceptives) i. What is the power? 1. Since he was in his final term of law School he had not suffered an injury in fact 1. Analysis of Constitutional validity of a law passed by Congress.. When the wrong doer voluntarily ceases doing what he was doing to avoid the law suit c. What is the specific constitutional provision which justifies the law? ii. Scope of that power? 1.Eliminate the constitutional power source relied on by congress to justify the law a. Limitation of Judicial Power – Ripeness a. Balance – There is a constitutional power source that works but it is invalid if it contravenes another constitutional power source d. Meaning: They do not have the power to pass laws for the general welfare 2. I. Due to the time it takes to get into SC no pregnancy challenge would ever survive Mootness as it would always evade review in relation to that person or class of persons N. Eliminate Power Source . case – trial will not be over in 9 months b. I. Congress has no general police power 1. National Legislative Power a. Statute or regulation has not been enforced. Chief standing concern is whether any injury has occurred. two questions: i.. What people or activities fall within the reach of that constitutional power? c. 10 . The court said the mere abstract generalized threat of enforcement of the law did not create a ripe controversy Article I – Legislative Power A. Mootness can be raised at any time by any party including the court b. Most often arises in cases involving enforcement of statutes or regulations i.if no injury. Gov’t Power as sword or shield 1. but there is a chance it will be c. Abortion/Election Laws/Age law 1. Exception: District of Columbia b. Collateral Actions and Class Actions (not tested) 2. Defunis v Odegaard (1974 – A white law student challenged the schools affirmative action admission program violates his equal protection rights) i.e. Ripeness is concerned with the timing of the injury – when is lawsuit appropriate i. Any act of congress must be grounded in a specific provision of the constitution ii. Key Notes i.

6. Power to coin money. US v Comstock (keeping sexually predators in jail longer than their sentence) i. If congress want to attempt to regulate the general welfare it is typically through the Commerce Clause (Art 1. with foreign nations and Indian tribes b. 4. Power to establish a postal service. 9. Necessary: means convenient. any other branch or officer of the federal government ii. Proper: If the end be legitimate. Power to pass regulations for the District of Columbia e. Power to set up federal courts. 12. NPC must be used with another constitutional provision b. Power to regulate and dispose of federal property. and which are not prohibited. Among the states. 8. 9: Federal Limitations iv. 13. Main Powers Art 1. Sect. Under this clause congress has the power to make law not only for itself but for the president and the courts . Kansas v Colorado (1907 – we want to irrigate and reclaim arid land) 11 . and 14. §8 1. Rule: Like congress the states have no power to add to the qualifications for a member of congress and thus cannot bar the name of an eligible candidate for congress from appearing on the ballet. §8. To borrow money. 1. Power to set up a system of copyright. McCulloch v Maryland (1891 – Congress wants to open a bank and the state wants to tax it) i.gives congress an implied power iii. 10. Article 1 i. To declare and conduct a war. 1: Vesting of federal legislative powers ii. Lay and collect taxes. which are plainly adapted that end. 8: Enumerated federal legislative powers (18 clauses they enumerate most powers) iii. The state changing term limits for the state reps are allowed ii. 2. 11. a. may constitutionally be employed to carry it into effect ii. useful or essential to support congress/president/JD branch c. Civil detention statue was deemed constitutional under the necessary and proper clause e. Art. Power to regulate immigration and naturalization. and within the scope of the constitution. 3 – Congress has the power to make all laws which shall be necessary and proper for carrying out any constitutional power for itself. Power to maintain and raise armies. §8. Sec. 1. 3. Key Notes i. 10: State Limitations B. Power to acquire private proper for public use. To regulate commerce . Sec. Cl 3) 5. 7.i. all the means which are appropriate. The constitution is silent on whether a state has the power to add qualification for a candidate therefore they must not have the power to do so (what about 10A) d. Power to spend for the general welfare. Cl. US v Thorton (1995 – term limits) i. Sec. Necessary and Proper Clause (NPC) a.

g. and among the several States. Does a congressional act unduly abridge states rights? 1. Congress may exclude from interstate commerce products and transactions which harm the health. trains… a. Upheld regulation under commerce of a ship navigation entirely within MI waters on the grand river below grand rapids ii. Instrumentalities . The necessary and proper clause is not the delegation of new and independent power. great lakes. Champion v Ames (1903 – the lottery tickets driven from TX to Cali) i. This brought the question of whether or not the Commerce Clause allowed for federal legislation directed at the economic causes of the depression 12 . Satellites ii. Gibbons v Ogden (1824 . safety or welfare of the nation ii. plains. Daniel Ball (1871. What is the scope or reach of the CC power? (Lopez and Morrison) ii.NY gave me the right to navigate the waters.g. Commerce Clause Art. 3 categories of commerce i. Commerce Clause (CC) a.Instruments of interstate commerce how the commerce is carried and what is being shipped 1. 1930 – Brought the great depression i. The traffic of the tickets within the state is for the state to decide. 1.i. e. and with the Indian Tribes” b. So a state can allow the sale of tickets within its boundaries D. Substantial Relationship To– Things (activities and people) that have a close and substantial relationship to interstate commerce (NLRB) 1. cars. morals.. Ship was engage in commerce among the states because it: 1. Channels . E. National Legislative Power . Boats. Analysis Two Questions? i. TV stations. Can be intra state commerce but if it going to affect Interstate CC Congress can regulate it d. Clause 3 – Congress has the exclusive power “To regulate Commerce with foreign Nations. The channels of interstate commerce were being indirectly effected by unemployment and drastic cut backs in production ii. What’s being shipped… people. Notes: Lottery tickets are objects of commerce as they can be sold and transported so they can be regulated from state to state – the power to regulate includes the power to prohibit iii. animals iii. E. Carried goods within MI that came from outside the state and carried goods within MI that was destined for other states f.traveling the water ways up and down MI cost with comers intended for other states).Things that evolve channels (Gibbons) 1. Congress may not regulate that person or activity if it unduly interferes with state sovereignty c.Commerce Power – Pre 1937 a. Rule: Congress has power under the commerce clause to regulate undesirable activity 1.. internet. great but congress gave me the same right) This case defined commerce.Stream of interstate commerce i. but simply provision for making effective the powers listed C. highway. §8. Rule: Congress has no legislative power to irrigate non-federal lands 1.

NLRB v Jones and Laughlin Steel (1937 . Court reasoned that wheat consumed on the farm where grown. fed up with the Supreme Court invalidating New Deal policies. proof that they possessed a firearm previously traveled at some time in interstate commerce was sufficient to satisfy required nexus between possession and commerce. The act is directed at the suppression of unfair competition in interstate commerce – a valid purpose. US v Darby (1941 – You can’t regulate wages it has nothing to do with interstate commerce…yes we can it has a substantial effect on ICC – overruled Dagenhart) i. Hammer v Dagenhart (1918 – Prevent child labor with commerce clause. Scarborough v US (it is a crime for convicted criminals to possess a fire arm) 1.company wanted to discharge striking employees – Close and substantial effect on ICC) i. Held: Congress an restrict the ability of a steel company to discharge employers because of union activity – The ICC is a sufficient basis for the national labor management issues b. would have a substantial effect in defeating its purpose to stimulate trade therein at increased prices. Rule: Since the items themselves are not harmful to society the regulation of them by the Commerce Clause does not apply as the activity is not interstate (over ruled by Darby) c.Aggregation theroy 1. Protection of Civil Rights Though the Commerce Clause i. Hearts of Atlanta Motel v US (We are a local hotel that gets out of state visitor but no Negros allowed) 13 . This one farmer’s act are trivial by themselves but if a lot of farmers are doing this it has an effect (aggregation) e. US v Sullivan (The food. if wholly outside the scheme of regulation. b. threatened to "pack" the court with new appointees. d. Power Over Local Activities – Aggregation Theory i. Reason –Production is purely a local (state) activity Commerce Power – Expansions After 1936 a. Holding – The commerce clause did not give congress power to require Coal members to observe the hours and wages agreed upon between producers of two thirds the coal volume and ½ of the employed mine workers 1. and cosmetic act – pharmacist does not label a bottle of pills) 1. After Interstate Commerce Ends i. Therefore the act is constitutional c. Held – a federal statute making it crime for convicted felon to possess “in commerce or affecting commerce” any firearm. drug.E. FDR – New Deal Programs for economic recovery iv. Carter v Carter Coal Co (1936 . Rule: the prohibition of the shipment of interstate goods produced under the forbidden substandard labor conditions is within the constitutional authority of congress 1. not) i. Wickard v Filburn (I grow some wheat to sell the rest I use for me – Minimum impact of one will add up if many to it). The Lochner era ended after President Roosevelt. Held – the Commerce clause allows congress to regulate the branding of article that have completed an interstate shipment and are being held for future sales in a purely local or intrastate commerce ii. iii.manufacture not complying with the minimum wage) i. a.

Just the State a. Power of Congress to promote interstate commerce includes power to regulate local incidents thereof. which might have a substantial and harmful effect upon that commerce. instrumentalities. Exam Purposes -Look at who is being regulated 1. State Only being regulated d. 14 . are reserved to the States respectively.. and people or activities that have a close and substantial relation to interstate commerce 2. welfare. including local activities. State and private entities a. Hodel v Virginia Surface Mining (Surface mining is affecting other states) 1. and morals is derived from the Tenth Amendment b. 10A . None economic or commercial (no buying or selling) activity c. Modern Limitations of the Commerce Power (Scope) i. Protection of Environment Though the Commerce Clause i. delivery of police.. g. Holding: Congress may not regulate wages and hours set by a state (as an employer) because the federal wage and hour provision directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions.” ii. fire or school service 2. Holding. The right of states to make laws governing safety. health. Courts will determine if the federal law unduly interferes with essential attributes of state sovereignty i..F. US v Morrison (2000 – Rape Case . or other environmental hazards that may have effects on more than one state. National league of Cities v Usery (1976 – Feds are trying to regulate the amount paid in overtime to police in the state) i. i. Purely local (not interstate) b. US v Lopez (1995 – Congress attempts to use ICC to regulate gun control in school zones) 1.VAWA affects commerce."The powers not delegated to the United States by the Constitution. state police power 1.e.not really) 1. nor prohibited by it to the states. This is an non economic activity and nothing is crossing state lines that even when aggregated doesn’t have a substantial impact on interstate commerce a. channels. Key Notes i." 1. or to the people. in both the states of origin and destination. (aggregation) f. Power conferred on Congress by commerce clause is broad enough to permit congressional regulation of activities causing air or water pollution. Garcia v San Antonio Metropolitan Transit Authority (1985 – the feds can apply the FLSA wage and hour provision to a municipally owned and operated transit system) 1. Used Lopez ruling State Immunity from Federal Regulation (10A and ICC) a. There are three categories of activity that congress can regulate. Aggregation doesn’t even help (Wickard) ii. The only protection a state against infringements of its rights is their participation in the national political process c.

Art I. and made them liable for damages 2. imposts and excises. The list being sold Distinguished New York and Printz: this law did not require states to enact laws or regulations. The basic structure of our political scheme will make sure congress does not go too far ii. § 8. and must resort to the political process (i. Key Points i. Congress has 4 primary powers: 1. Reno v Condon (2000 – State can’t sell the DMV list it is an invasion of privacy) 1. NY v US (1992 – Low level radioactive waste disposal) 1. Use Garcia the political process test . A “take title” provision forced states to take ownership of radioactive wastes (even if it wasn’t theirs). GR: Congress may not compel states to enact or administer a federal regulatory program ii. It also undermines judicial review iii. State interests are protected by procedural safeguards in federal system. cl. to pay the debts and provide for the common defense and general welfare of the US b. 1.when congress is regulating state and others (Modern view) f. or enforce federal statutes. Notes: i. To achieve a valid regulatory goal of congress (present through Commerce power): 15 . even if the amount is oppressive ii. As a revenue raiser(always a good reason): i. State and Private entities are being regulated e. especially without state consent 2. for its citizens. Taxing (2 ways) a. Holding you can’t commandeer state officers to execute federal law. Anti Commandeering Principle (per se invalid) i.when congress is regulating the states as states typically not valid due to dual sovereignty ii. 1 – congress has the power to lay and collect taxes. This law only regulated state governments – commandeering state legislative process by directly forcing them to enact and enforce a federal regulatory program iii. This is not really a well founded notion 2. No 10th Amendment violation because law simply prohibited states from acting. 2. Printz v US (1997 – Brady act – you the state will implement this act with your own recourses) this is a per se rule (you cannot commander the states) 1. duties. If congress thinks this is important it can pay the states to do the background check (spending power) iv.e. Use Usery the balancing test .i. Congress) for relief. As long as the purpose of the taxing measure is to raise revenue it will be upheld. G. Note: the tax may be overturned if it contravenes on other constitutional protections b. Taxing and Spending Powers a. not by judicially-created limitations on federal power.

Four Requirements of Conditional Spend of Federal funds i. Taxing as a way to achieve a valid regulatory goal is valid 1. . Key Notes: i. For the common defense and general welfare i. §8 spending for the general welfare and independent power. National Legislative Power . Under Art. if they can’t get to something under ICC using tax power won’t work) I.Regulating Through Spending a. they do so knowingly and cognizant of the consequences of their participation 2. not simply adjunct to other enumerated powers b. Gov’t is the largest land owner in the nation ii.Regulating Through Taxing a. Taxing and Spending Authority 1. Suggestions for exam i.. 3 sources of authority a. It is voluntary 16 2. Rule: Congress cannot use its taxing power to accomplish objectives that it cannot reach under its other powers (i. They can spend for any of the enumerated powers in the constitution 3. When they spend they need a Rational Based Scrutiny i. Cl. Art I.regulation of child labor is a state function – so why are you taxing me) i.i.e. Baily v Drexel Furniture Co(1922 . §. 2 congress has the power to dispose of and make all necessary rules and regulations regarding any property belonging to the US e. 16th amendment: congress has power to tax incomes without apportionment H. Spending must be for the general welfare or common defense ii. it may tax that activity as a mean of achieving its permissible regulatory purpose Spending a. Congress is policing themselves when determining what is good for the General Welfare b. If congress can use its ICC power to regulate. IV. First question to ask is who is acting? Federal government or the state ii. Necessary and proper – Tax and Spending as incident to expressed powers a. Is there a rational basis to support congresses conclusion that the law will advance the general welfare c. So that ft states choose to participate. National Legislative Power . Virtually all taxing measures will be upheld today at less it contravenes another constitutional provision b. Condition must be unambiguous 1. What power source is being used? If it is the ICC they are good b. Regulatory (police power for states) 4. Proprietary (ownership and sale of land) d. Every tax in some way is regulatory…but a tax is not any less a tax because it has a regulatory effect even if it generates little revenue ii.

Needs to be implemented by legislative authority (bicameralism) c. Although there is no specific grant to congress in the constitution of power to enact legislation for the effective regulation of foreign affairs there can be no doubt of the existence of this power d. Issue: did the law coerce state government to adopt unemployment compensation laws in violation of the 10A? No it was optional e. Establishment clause c. a display of arbitrary power. Invalidated the act on 10A issues (last case where 10A was used to invalidate a spending measure) d. Incident to spending clause.grants the president the power to make treaties with foreign nations. Reasonably Related .definition of the “general welfare” i. South Dakota v Dole (our drinking age is 19 who are you to say otherwise. The 10A (State police power) is not a limit on the treaty b. Other constitutional provisions may bar the conditional spending 1. and objectives not thought to be within enumerated legislative fields may nevertheless be attained through use of spending power and conditional grant of federal funds Foreign Affairs Power (implied power) a. . The important national interest here can be protected only national action in concert with another nation 17 . Treaties -Art II. 10A. Basically just an agreement to agree between nations 2. Only the power that is national can serve the interest of all f.J. Helvering v Davis (1937 – Social Security Program is valid) . US v Butler (1936 – Agricultural Adjustment Act – don’t make so much wheat – Wicker overruled this) i. and not an exercise of judgment. unless the choice is clearly wrong. Types of Treaties i.The discretion belongs to congress.Conditions may be illegitimate if it us unrelated purpose of the federal grant iv. Missouri v Holland (1920 .Congress federal highway grant if you raise your drinking age) i. These treaties become the supreme law of the land ii. Has the force of law as soon as they are ratified ii. Rule: Conditional spending cannot be to coercive with the states as it was here ii.comprehensive – the treaty contains within it all of the necessary elements to execute it completely 1. Congress may attach conditions to receipt of federal funds. Steward v Davis (a national tax on all employers to generate the national unemployment fund) i. A treaty may be a source of legislative power . §2 . Non-self execution treaty – just has the broad definition of what the nations are agreeing to and leave to each nation to way to execute the treaty 1.Congress may implement an US treaty creating regulations that would be unconstitutional if the act stood alone ii. Perez v Brownell (1958 – born in the US. provided that 2/3 of the senators present concur i. Cardozo said: This would serve as bait for the needy and dependent encouraging them to migrate and seek a haven of repose in a state with such a system 1. lived and voted in Mexico) i.US and Canada save the migrating birds) i. iii. Self executing treaty .

Collect v Day (1871. Does not unduly interfere with or substantially burden traditional state functions and 3. A state which represents only a part of the people of the nation cannot act to control the government of the whole country 3. Does not apply to revenue uniquely capable of being earned only by the state ii. under the constitutional authority to “lay and collect taxes.our judge is necessary and proper to our states function so you can’t tax him) 1. nor prohibited by it to the states.e. GR: if a state began to undertake new function resembling business enterprises more than traditional sovereign activity (i. NY v US (NY was selling water to its employees) 1. iv. f. A state has no power to impose a tax on the pay of a federal officer c.” impose a tax upon the salary of a judicial officer of a state. Rule: A treaty/Executive agreement obligations cannot override constitutional requirements ii. GR: A federal tax on all states would be valid as long as it does not 1. These are agreements between the president and the chief executive of another country ii. hospitals) immunity is restricted iii. Discriminate against the states 2. The constitution is the supreme law of the land and its protection of individual rights cannot be contravened by a treaty or executive agreement Executive Agreements (implied presidential power) i.. Rule: The federal government is supreme under the constitution and its instrumentalities cannot be taxed by the states 2. The power to tax is the power to destroy and control ii. Terminology – 10A and state sovereignty are strongly related 1. If the treaty is valid there can be no dispute about the validity of statue [as] a necessary and proper means to execute the powers of the government Reid v Covert (1957 – reversed murder conviction of US military defendants) i. Text: 10A . Federal Immunity from State Taxes i. If there is a conflict between the two federal statute will preempt Intergovernmental Immunities A. Co-sovereignty and State sovereignty ii. Intergovernmental Immunities a. State Immunity from Federal Tax i. Key Points i. are persevered to the States respectively or to the people. State revenue may be taxed by the federal gov if the revenue for the state activity is not uniquely capable of being earned by a state 18 .e.The powers not delegated to the US by the constitution. DO NOT confuse with sovereign immunity – 11A b. 1. Dobbson v Commissioners 1. These agreements are of lower order than federal statutes 1. Rule: Congress cannot. Senate ratification of an executive agreement are not necessary iii. iii. McCulloch v Maryland (Maryland wants to tax the federal bank) 1.

key is powers should be effectively separated. But Congress can decide who gets to appoint “inferior” officers a. This approach is usually used to strike down an act of the president ii. Delegation of rulemaking power to agencies a.Separation of Powers – Executive and Legislative A. Treaties (with senate approval) iv. and essential checks and balances are preserved. Youngstown Sheet v Sawyer (Pres ordered secretary of commerce to take possession of and operate most of the nations steel mills in anticipation of Korean war – violates 5A as this is something only congress can do – Contrary to Congress) i. Pardon – for federal offenses only b. Legislative delegation 1. or department heads . b. Congress can limit power B. 1. In some instances. Holding: The President was acting outside of his Constitutional power in directing the Sec. judiciary. Legislative veto and Line item vetoes are unconstitutional ii. Art II Executive Powers a. Delegation or reservation of “lawmaking” power: i. Formalism: strict separation of the roles and duties of each branch as specified in the Constitution – “watertight compartment” theory. Authorized . Formalist and functionalism approaches to separation of powers (if there is a SoP issue discuss this) i. Appointing officers 1. Power may be delegated to President. Appointment of inferior officers v. Functionalism: allows more blending of powers in the interest of effective administration. Zones of Presidential Power (J. Commander in chief iii. Presidential Power i. Jackson – Dissent Youngstown – when pres powers are crossing into Congress’s powers) i. c. his authority is at its maximum (Dames) 19 . Removing officers 1.Cannot delegate appointment power to itself iii. This approach is usually used to uphold an act of the president d. Veto Power vi. GR: if the Presidents appoints the officer he has the power to remove them a. 2.Highest – His/Her constitutional power + When the President acts pursuant to an express or implied authorization of Congress. General rule: President has an implied power to appoint his officers 2. Rule: The President’s power to issue an order must stem either from an act of Congress or from the Constitution itself. Execute Laws ii. Permitted so long as Congress articulates an “intelligible principle” to guide agency and limit agency discretion. of Commerce to take possession and operate the steel industry ii. Key Points i. Distribution of Federal Powers – Presidential Action Affecting Congress a.

the Constitution creates a tension between the legislative and executive branches – tension the Court has never clearly resolved i. New issue that they have not taken a stand one ii. Even without specific authorization. Courts usually rule questions in this area are nonjusticiable political questions (eg. War powers 1. congressional acquiescence to presidential action may create an inference of congressional authorization f. Internal matters: Domestic Law Making a. The Treaty was not self execution so it is not effective domestically without legislation by congress D. Two types a. Presidents Foreign Affairs power are very broad 20 ii. SC upheld presidential executive order to implement an executive agreement between Iran and the US securing release of American hostages 4. – what is a proper war?). authorize the President to take certain action. ii. through which the President of the United States manages the operations of the Federal Government ii. Executive agreements do not – are not textual ii. Does congressional silence amount to implicit approval 5. a. They have historically allowed this to happen without incident b. Contrary . Texas (2008 – TX cops did not tell the foreigners they had a right to talk to their conciliate) i. iii. by statue or resolution. 2. President’s “Memorandum” that state courts must adhere to the ICJ’s decision regarding notice of right to conciliate is invalidated – Contrary Zone iii. Dames v Regan (1981 – Efforts to conclude the Iranian hostage issue) 3. a. 2. Medellin v. Treaties require Senate ratification and sometimes implementing legislation. Congressional “acquiescence” (Passive assent) i. Executive Orders . Main concept: In the areas of war and foreign powers. Executive Orders i.acting within just his/her own constitutional power + congress has been silent iii.Lowest – Pres is acting on his or her constitutional power but in contrary the will of congress. Treaties v Executive Agreements: 1. Constitution distributes between Congress & President. Provisions of the Vienna Convention on Consular Relations and the ICJ’s decision are not binding sources of domestic law in the absence of implementing legislation.Twilight – Middle . Rule: Congress may. numbered consecutively.are official documents. (Youngstown Sheet) e. The internal system of checks and balances is thwarted because legislative silences are not subject to presidential veto and congress cannot be held accountable by the electorate for law it enacts by silence C. Very little guidance from the Court – usually very deferential to Congress & President. Distribution of federal powers – foreign affairs and war a. .

F. 1. in view of authority of President as instrument of federal government in field of international relations. This is simply a resolution so it is not a law 2. Held: Joint resolution was not an unlawful delegation of legislative power.If the president uses the armed forces in foreign nations under certain conditions without congressional declaration of war. Formal bicameral enactment with presentment 2. Presidents will typically ignore this last part iii. b. Campbell v Clinton (2000 – We are not going to war I am just sending the troops to help) i. It also conflicts with the commander and chief authority d. Declaring war i. But state of war may exist with or without a declaration b. US v Curtiss(1936 – We will not trade with them until they establish peace) i. President Lincoln ordered a blockade against secessionist states a. No declaration of war by Congress yet the court upheld blockade i.Their constitutional rights are not being violated.E. This resolution spells out the President’s authority to use the armed forces. These are not presented to the president so it is not made law. 3. President may not declare war ii. Key Notes 21 1. The president is the sole organ (primary entity) of the federal government in the field of international relations 2. ii. but the president can commit the troops that is an enumerated power of his 1. President has a duty to defend even without congressional action. Holding: Congress may not bring suit against the President for an alleged violation of the War Powers Resolution ii. In absence of any congressional action the forces must (in most cases) be removed within 60 days a. He needs to be the primary representative to prevent embarrassment and just based one practicality we need one coherent voice b. He can do this without congressional approval ii. Court has rarely spoken directly about these issues: i. he just formally report to congress within 48 hours 2. Foreign power inherent in the sovereignty of the nation. Where war is waged against the United States. How to declare war 1. Most common type of war declaring b. The justices said congress lacked standing as the “aggrieved party” . The president cannot declare war that is an enumerated power of congress. . Individual Rights and the War on Terror a. do not depend on enumeration in the Constitution War Powers a. War Power Resolution i. Joint resolution of Congress a. Legislation funding hostilities c. Notify congress. Notes 1. The Prize Cases (1862) 1. In 1973 Congress adopted a joint resolution Called War Powers Resolution ii.

Joint resolution authorizing the use of military force i. and Boumedine G. Where they provided adequate due process b. US Citizen Detained as an Enemy Combatant . Due Process Requirements (US citizen it entitled to these) i. The court has jurisdiction under Federal habeas corpus statutes to review the detention of persons. Rule: Military commissions used to try enemy combatants at Guantanamo Bay must comply with federal law and principles of international law d.US Citizen claiming to be an aid worker in Afghanistan Guantanamo bay to US Army Bridge – Dad brings a writ of habeas corpus) – This is an example of Judicial Review i. This gives the president broad authority to use force against nations.War Powers a. Know – Hamdi. Rasul . The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it ii. Due process can only be suspended for a small time 2.i. If the US is involved the constitution is relevant ii. Process might be tailored for circumstances. Rasul v Bush (2004 – Captured in Afghanistan and held in Guantanamo Bay) i. organization or persons the president deems aided in the terrorist attacks c. This case involved restrictions on military commissions used to try enemy combatants ii. Applied to GB as US had complete control over the military base 22 . detained by the government in the war on terrorism d. Hamdan v Rumsfeld (2006) i. like admission of hearsay and presumption in favor of government b. whether citizens or foreign nationals . Held: that a citizen-detainee seeking to challenge enemy combatant status must receive notice of factual basis for classification. Notice – meaningful and timely notice of the factual basis for his status as enemy combatant ii. Counsel – Right to counsel 1. In response to 9/11 congress passed a joint resolution titled “Authorization for Use of Military Force” (AUMF) ii. and fair opportunity to rebut facts before a neutral decision maker – these are the essential requirements of procedural due process. Natural Judicial Maker – Fair opportunity to rebut the assertion iii. GR: Alien detainees imprisoned at GB have a right to challenge their dentition in US courts b. Determination of enemy combatant status – this determination is made by the president a. Judicial Review of the Detentions of Detainees in the war on Terrorism i. Guantanamo Bay was under the exclusive control of the US as such Constitution applies c. Suspension clause i. 3 step enemy combatant process 1. H. Hamdi v Rumsfield (2004 – Detention of Citizen Enemy combatants . Alien Detainees Rights – War Powers a. Alien detainees imprisoned at Guantanamo Bay have a right to challenge their detention in US Courts ii.

Congress may delegate to the president. Council. If congress is going to suspend the writ of habeas corpus there needs to be an adequate substitution in place Separation of Powers . Implied delegation: regulations valid if reasonable c. Senate – Power to try impeachment. to approve presidential appointments and to ratify treaties 2. Express delegation: regulations valid unless “arbitrary.Congressional Action Affecting Presidential Powers a. No Strings (legislative Veto) iii. Chevron U. Def. or manifestly contrary to the statute” ii. but keeps for itself the power to invalidate the ensuing executive action 1. Boumediene v Bush (2008 – GB prisoners wanting to challenge their status as enemy combatants were denied the opportunity) i. House of Representatives – Power to initiate impeachments b.S. Nat’l Res. the power to promulgate (To put a law into effect by formal public announcement) rules and regulations to implement congressional goals ii. There are only 4 provisions in the constitution by which one house may act alone a. Bicameral 1. Yakus v US (1944 – Emergency Price Control Act –Which allowed executive officers to through regulation Maximum Price and rent) Separation of Powers – Legislative and Line Item Vetoes a. Inc. . Here the court said that Congress did not provide a “meaningful opportunity” for a detainee to demonstrate that he is being held pursuant to an erroneous application of relevant law ii.A. has always been that the agencies are simply filling in the details after Congress has enacted the basic standards b. v.e. A delegation will be valid if: 1. Theory behind these delegations.say that invalidating a LV for all practical purposes purpose f forth branch of Government not subject to the direct control of either Congress or the executive branch b. Delegation of Power to the Executive Branch i. Proponents of the LV . Congress has not attempted to give away some non-delegable power 2. Bicameral requirement insures careful consideration of all legislation ii.. Legislative Vetoes (not allowed) i. Presentment Clause 1. other officer in the executive branch. 3.I. Congress has provided specific standards for the executive branch official or independent commission to follow (Intelligible Principle) AND 4. does not sign or veto it) the presentment clause is satisfied 23 e. Bicameral Requirement and Presentment Clause i. or independent regulatory commission. Bills must be presented to the president for signature a. A LV may invalidate an otherwise valid delegation ii. Congress has state the objective of the law. Even if the president does nothing after it is presented (i. (1984) i. however. J. capricious. Inc. A legislative veto exists when Congress purports to give (delegate) power to an executive agency or official.

Clinton v City of NY (1998 . as they think proper. but either house can veto the suspension) i. violates separation of power d. This was a formalistic approach by the court ii. Appointment Clause Article 2 Section 2 i. Congress may not grant the President a line item veto that allows him to cancel legislation after it is duly enacted or signed – giving the president legislative power 1. It is unconstitutional for Congress to give the President the power to cancel an item of new direct spending after the President has already signed the spending measure into law ii. and by and with the Advice and Consent of the Senate. The court said that the Houses resolution requiring the deportation of Δ was an exercise of legislative power (tantamount to a law) because it changes Δ’s legal status and relations 1. in the President alone. Separation of Powers – Appointment Power of the President a. other Public Ministers and Consuls. neglect of duty. Ask . Held: the line item veto unconstitutional as this act would authorize the president to create a law that was not voted on by either house or presented to the president for a signature K. or malfeasance in office. in the Courts of Law. Rule: The president has almost unlimited power to remove officials who perform purely executive functions ii.INS V Chadha (1983 – AG can decide whose deportation is suspended. 1. however allowed Congress to retain control over the ultimate outcome even after it attempted to delegate said power – This violates the constitution as it retains executive power in the legislative branch: 1. when 24 c. The president shall… nominate. Judges of the Supreme Court. It allows the president to unilaterally modify a properly enacted statute which is a legislative power ii. Reasoning: the president’s selection of administrative officers is essential to the execution of the laws by him. Humphreys Executor v US (1935) i. Line Item Veto Differs from the constitutionally prescribed procedure 1.Does this person have a superior officer other than the president b. The veto is for the entire bill 2. but the Congress may by Law vest the Appointment of such inferior Officers. Myers v US (1926 – early case law ) i. shall appoint Ambassadors. so must be his power of removing those he cannot continue to be responsible c. Inferior officer connotes a relationship with some higher ranking officer or officer below the president a. This veto is used only on a part of the law – in effect president is creating a new law e. The legislative veto provision.line item veto which allowed the president to unilaterally change a statute) i. Rule: A Statute permitting President to remove members of Federal Trade Commission for inefficiency. Line Item Vetoes i. or in the Heads of Departments. and all other Officers of the United States. In a normal presidential veto the veto occurs before the bill becomes law. . Line Item Veto – the veto is used after the bill has become a law.

The constitution gives congress a role in appointment of executive officers. Congress has authority to require quasi legislative and quasi judicial agencies to discharge their duties independently of executive control. is a valid restriction on authority of executive. and to fix period of holding office and to forbid removal by President of members thereof during their term of office except for cause 1. administrative authority 25 . Facts: In hiring independent counsel. 1. Holding: Ethics in Government Act restricting Attorney General's power to remove independent counsel to only those instances in which he can show “good cause” does not impermissibly interfere with President's exercise of his constitutionally appointed functions iv. with limited jurisdiction and lakes policymaking and significant. president or the judicial branch) Buckley v Valeo (1976 – congress retained the power to appoint their members) i. a court of law or the head of an executive department – but not in itself Bowsher v Synar (1985) i. f. Independent Counsel is an inferior officer under the appointment clause. it does not give them an active role in supervising that officer Morrison v Olson (1988 – creation of independent counsel) i. in the Courts of Law. The power to remove is the power to control: congress may not delegate executive function to someone whom it can fire (Legislative Veto) 3. Under this law 2 were appointed by the president and 2 by the speaker of the house and the President pro tem of the senate ii. the appointment clause and general separation of power analysis 1. The comptroller general was performing an executive function by engaging in the budget cutting process 2. congress may vest the appointment of inferior officers in the president. Does this create a headless fourth branch (not subject to congress. e. Issue: whether congress can delegate executive functions to a government officer who is removable by congress 1. in the President alone. iii. Congress may by Law vest the Appointment of such inferior Officers. Removal restriction by Congress will be valid unless they unduly interfere with an essential attribute of the presidency 2. No. or in the Heads of Departments ii. Here the court reasoned that is an officer holds his office only during the pleasure of another they cannot be depended upon to maintain an attitude of independence against the latter’s will 1. Upon the special divisions approval they appoint the IC. Quasi legislative/judicial agencies powers are not essential to the presidents proper execution of his constitutional duties and therefore those heading them need not be removable at his will iii. This act does not violate the separation of powers doctrine. Issues in Morrison include: removal restrictions on the President.d. construed to limit President's power to removal for causes thus enumerated. the AG conducts a preliminary investigation and then reports to a special division of the Court of Appeals. as they think proper. ii.

. Held: That Nixon’s generalized claim of privilege (no national security or foreign affairs argument was advanced) was outweighed by the fundamental due process rights of the parties in a criminal prosecution 26 2. 3 Kinds of Invocations of the Privilege 1. The president needs to be able to conduct the affairs of office free from excessive public scrutiny iii. Buckley. 2. bribery or other high crimes or misdemeanors ii. Wiener. Bowsher and Metropolitan Airport – separation of power was violated by congress seeking to reserve an executive power for itself b. the President therefore must have some power of removing those for whom he can not continue to be responsible h. Chadha. Myers. Separation of Powers – Privileges and Immunity a. Free Enterprise Fund v Public Company Accounting (2010 – Securities and exchange board hires the head of an agency) i. Key Notes a. 3. Morrison and Mistretta – These cases all concern congress lessening the president’s power without reserving a corresponding power for itself M.The President's need to control counsel is not so essential to functioning of Executive Branch as to require as matter of constitutional law that counsel be terminable at will by the President. recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated b. or communications that are generated during that President’s tenure in office i. document. Presidents may be impeached for treason. US v Nixon (1974) i. Executive Privilege – means that the president has a presumptive right to refuse to disclose materials. privilege may have to yield to other government interests. Why Is this Privilege Necessary 1. Mistretta v US (1989 – Pres has appointed federal judges to a committee on sentence guidelines) i. Generic Privilege for internal deliberations – attaches to intergovernmental document reflection advisory opinions. and it is his responsibility to take care that the laws be faithfully executed. the President the general administrative control of those executing the laws. Invoke on the grounds that disclosure of the desired information would subvert crucial military or diplomatic objectives 2. Law of evidence recognizes an informers privilege – the government’s privilege to withhold from disclosure the identity of persons who furnished information of violation of law to officers charges with enforcement of that law 3. Rule: It does not violate the constitution for federal judges to sit on a commission which develops sentencing guidelines for federal courts L. Humphrey. It is a presumptive privilege – the burden is on the party seeking disclosure to justify the production of the material – which may be overridden by a sufficient weighty reason for disclosure 1. but qualified. Not absolute. This is a functionalistic approach g.

The speech and debate clause – Art 1. they shall not be questioned in any other Place. d.They shall in all Cases. the president was acting within the outer perimeter of the duties of the office iii.c. To determine if qualified immunity applies. Holding: The speech and debate clause does not protect a Senator from criminal prosecution if the prosecution can reasonably be deemed to be based on words or conduct that were not an essential part of the legislative process 1. Holding: The SD Clause protected a senator when he read into the Congressional Record a stolen copy of top secret pentagon papers on the floor of the senate Hutchinson v Proxmire (1979) i. There is not temporary immunity from civil damages litigation for events that occurred before the president takes office Clinton v Jones (1997 – Paula Jones accused the pres of sexual harassment and claimed her refusal lead to adverse consequences to her career) i. Legislative Immunity i. §6. ask whether a reasonable person in an official capacity knew or should have know that his/her actions were violating clearly established constitutional rights 2. Absolute Immunity 1. and in going to and returning from the same. Note: If a presidential aid were entrusted with discretionary authority in a highly sensitive national security/foreign affairs position. Nixion v Fitzgerald (1982 – Pres fired Fitz after he testified against him in court) Civil Damages for Events Prior to Taking the office i. ii. i. Holding: the constitution does not require that a lawsuit for civil damages against a sitting president be deferred until the president leaves the office Qualified Immunity for Presidential Aides and Advisors i. Executive Branch officials other than the President have qualified immunity from civil damages liability 1. Felony and Breach of the Peace. the court has recognized it as a necessary incident of the powers of the President ii. Cl 1 . g. h. that aid might be entitled to absolute immunity to protect the performance of functions vital to our national interest. The is not constitutional provision giving this immunity. f. j. It will not protect the Senator from prosecution for solicitation and acceptance of bribes in exchange for favorable votes on future litigation Gravel v US (1972) i. The president has absolute immunity from civil liability for his/her official acts. and for any Speech or Debate in either House. be privileged from Arrest during their Attendance at the Session of their respective Houses. Under this clause Senators and Representatives are immune from civil or criminal suit for any words or conduct that are an integral part of the legislative process US v Brewster (1972) i. e. as long as. 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. Holding – the giving of the golden flees award to publicize what a senator considered wasteful spending on the floor of the senate was protected under the SD Clause 27 . except Treason. i.

Notes: there are two sided to the CC 1. Scenario 3 . Express preemption: Congress expressly declares intent to preempt state law 2. Main concept: The “negative” or flip side of Commerce Clause prevents states from unreasonably interfering with. Congress has the power to preempt state law – even without an express provision for preemption in the constitution 1. 2. Crosby v National Foreign Trade Council i. How the preemption was express is a key factor in determining Congress intent c. S – significant iv. cl. Field Preemption – The court has to infer from a comprehensive regulatory scheme that congress has set up . Key issues are: 1. Implied preemption: Congress has not expressly declared intent to preempt. iv. Conflict preemption – if you use the state law you cannot use the federal and vice versa i. Look at the purpose of the statutes they may be able to exist – the federal law is to regulate X are state does not have X ii. Side two the dormant power of the CC – The shield b.Uniformity iii. State Power to Regulate . iii. State law must yield to a congressional Act in at least two circumstances 1.that congress has decided to a regulate the field and there is no room left over for the states to regulate that area i. DCC – Refers to the commerce clause in cases in which congress possesses regulatory power but has not exercised it ii. States discriminating against out-of-state businesses. Scenario 1 -If congress is acting under the commerce clause and the states are not doing anything – Typical Commerce Clause Question ii. Side one the affirmative positive power source – The sword 2.If both congress and the states are acting in the same area . U .Dormant Commerce Clause A. Dormant Commerce Clause i. H. or discriminating against.historical value (historically congress has regulated in this area) 3.preemption d. Preemption – Art. State law may be preempted by federal law under the Supremacy Clause i. but intent may be implied by the circumstances a. VI. Scenario 2 – If congress is not acting and the states do thing to regulate commerce – DCC iii. Where it is impossible for a private party to comply with both state and 28 .Limitations a. or 2. P – Pervasive (important) ii. Ask yourself who is the actor i. Look for supremacy clause b. States granting preferential treatment to their in-state businesses. interstate commerce.

Dormant Commerce Clause Doctrine 1. Per Say Rule – losses 100% of the time 1. Does it treat for out of state business differently for economic protectionism reasons or for hording their natural resources iii. Rule: A State statute that clearly discriminates against interstate commerce will be struck down under commerce clause. in the absence of any preempting federal action. Then balance the two if the burden on interstate trade excessive in relation to local benefits B. Are there alternative available that don’t substantially interfere with interstate commerce iv. Pike Balancing test – State has a 50/50 chance of winning 1. Strict Scrutiny – Losses 90% of the time 1. When Congress’s power is “dormant” the states retain significant concurrent regulatory powers 1. State Regulation when Congress Power is Dormant a. State regulations that purposely discriminate against interstate commerce are invalid a. What is a sufficient obstacle is determined by examining the federal statute and identifying its purpose and intended effects. Wyoming v Oklahoma (Commerce clause prohibits economic protectionism) a. Evenhanded treatment of out of state and in-state a. Key Notes: i.Where federal law and where the state law is an obstacle to the accomplishment and execution of Congress's full purposes and objectives a. Discriminate against interstate commerce 29 2. Is there a legitimate (valid) state interest b. Applies when a state. Main v Taylor only case where the state won for this reasons b. Puts out of state business in a competitive disadvantage compared to in state business 3. Overtly or facially discrimination for public safety reasons 2. Narrow Scrutiny -The approach that the state has taken is very narrow and precisely oriented for solving the problem a. Two ways a state may interfere with the free flow of Commerce a. passes a law which interferes with interstate commerce 2. In absence of congressional action – the court applies the CC as a limitation on state action 3. Concurrent Doctrine i. unless discrimination is demonstrably justified by valid factor unrelated to economic protectionism b. e. . regardless of where it was produced – are valid and will be up held ii. Are the impacts on interstate commerce incidental (minor) c. State regulations that purposely or facially discriminate against interstate commerce – such as restrictions on the sale of goods imported from another state – are invalid unless supported by an extraordinary justification 2. State regulations only “incidentally” restricts the flow of interstate commerce – such as by regulating containers in which an item of commerce can be marketed.

It will be invalid under the Equal Protection Clause if the only reason for the law is local economic protectionism (promoting domestic business by discriminating against nonresident competitors) ii. Reason it does not place on interstate insurance business an undue burden D. Concurrent Powers of the Commerce Clause i. ii. If other states passed the same kind of law. If Congress authorizes a state to impose a discriminatory tax on out-of-state entities. such a tax will be immune from a Dormant Commerce Clause challenge i. 1. Congress had authorized this tax under the McCarran Act iii. But a local subject is best handled by the states. Cooley v Board of Wardens (1852 – You must hire local pilots to use our ports) i. The cumulative impact of a number of states each passing a law which prohibited out-of-staters from doing business in-state would severely hurt the interstate market 1. The court upheld state prohibition law because congress allowed states to ban instate sale of out-of-state liquor c. Baldwin v Gaff Seelig (1935 – We don’t want VT milk to undercut the cost of NY milk) i. which can adapt regulation to the local peculiarities c. Wilkerson v Rahrer i. Burden interstate commerce ii. Congressional Power to authorize State Discrimination Against Interstate Commerce a. Risk of multiple Burdens i. To uphold this statue as a valid exercise of police power as only an incident effect on commerce would “eat up the ruled under the guise of an 30 . Since Congress is the ultimate holder of commerce power. Prudential Insurance v Benjamin (1946) i. Whatever subjects of this power are in their nature national. Rule: If the law creates too great a risk of multiple burdens it will be invalid 1. Or plan of regulation. What would happen if other states had the same kind of law? b. Holding: The court upheld a Dormant Commerce Clause Challenge. may justly be said to require exclusive legislation by congress (there is a need for national uniformity) ii. Regulations that Burden Out-of-State Supplies Seeking In-state Markets a. The commerce power can be left to the state if it is local and not national in nature C. Some valid power reasons like health and safety b. When the subject is national it is best governed by one uniform system and therefore requires exclusive litigation by Congress. it may give states the power to discriminate against out of state commerce b. Held: A NY law that prohibited the sale in NY of milk brought outside of NY below a price set by NY law invalid ii. The state may impose regulations to assure the health of its citizens but not to assure their wealth 1. Analysis of State law that discriminates against OOS 1. Local economic protection or b.b. or admit only of one uniform system. Identify the discrimination 2. the national market would be fragmented iii. Identify the reason for the discrimination a. A SC law that taxed out of state insurance companies at a higher rate than in state insurance companies.

Key Notes i. West Lynn Creamery Inc v Healy (1994 –Mass combines a facially non-discriminating tax with a subsidy to in state farmers) i. State interest did not outweigh burden on interstate commerce ii.” iii. Holding: A state may not set up a system under which it subsidizes instate economic interest at the expense of out-of-state economic interests ii. “[T]he Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home state that could more efficiently be performed elsewhere. This law benefited the local dairy industry at the expense of out of state interest 1. exception” and would lead to a total emasculation of the law against state levied import on tariffs iv. One state may not in its dealings with another state place itself in a position of economic isolation c. It is discrimination against interstate commerce for a political subdivision of a state to exclude out of states from doing business within their boundaries d. Additionally: The law was unconstitutional because there were less drastic means available to achieve its goal of ensuring healthy milk iv. Rule: this type of law discriminated against interstate commerce even though some people within the limit were also at a disadvantage iii.” State Power to Regulate – Dormant Commerce Clause. Inc. Philadelphia v NJ (1978 – PA wants to dump our garbage in NJ) i. Preserving environmental resources for instate use (hording resources) b. (1970) i. The disbursement from the fund amounted to a subsidy of instate diary interest State Power to Regulate – Regulating Outgoing Trade a. F. Discrimination By Political Subdivision of a State: Less Drastic Means i. Held: OH discriminated in violation of the CC when it denied the tax credit for ethanol produced in IN. New Energy co v Limbach (1988 – OH tax credit to users of ethanol produce in OH or in states that gave a reciprocal tax credit) i. Pike v. Rule: A state may not prohibit importation of environmentally destructive substances solely because of their source of origin 31 . Even if there is a legitimate local interest. Dean Milk v Madison (1951 – all milk sold here must be pasteurized w/in five miles of Madison) i. which granted a direct subsidy to IN ethanol producers but furnished no reciprocal tax credit f.E. The court has not allowed environmental concerns to override the Commerce Clause ii. Held: a Madison Wisconsin ordinance that prohibited the sale of any milk in Madison that was not pasteurized within five miles of the town square invalid ii. Insuring the safety and health of its citizens may be a reason for the regulation. but it is not their only reason since there are alternative ways to ensure this without interfering with interstate commerce (narrowly tailored) e. Bruce Church.Protect the Environment a. this sort of burden has been “declared to be virtually per se illegal. The non discriminatory tax was okay but the coupling it with a subsidy that only benefits in-staters (the tax money went back to instate farmers) iii.

The ban was a clear discrimination against out of state baitfish. . e. Main clearly has a legitimate and substantial purpose in prohibiting the importation of live bait fish because substantive uncertainties surrounded the effect that baitfish parasites would have on the state wild fish population 2. Rule: a state may enact a statute that does not on its face discriminate against interstate commerce but that does cause a shift in an industry from a predominant out of state location to a predominant in state location C & A v Clarkstown (1994 – We have built this processing plant and this rule will make it profitable) i. Reciprocity Requirements violate the dormant commerce clause because they create too great a risk of multiple burdens on interstate commerce 1. Test Applied to State regulation of Wild Animals 1.c. Whether the statute serves a legitimate local purpose? 3. Multiple Burden – what happens if other states do this? Main v Taylor (main prohibited importation of bait fish from other states) i. h. OK was regulating how out of state sale of minnows but not how they are being sold in state iii. g. This law is facially discriminatory and is per se volatile of the Commerce Clause iii. Court applied the per se rule for local economic protectionism Hughes v Oklahoma (1979 – You can’t sell our minnows out of state) i. Rule: A local government may not require that all solid waste within its boundaries be processes by a specific local processor – this is discrimination ii. Reason: it hordes solid waste and the demand to get rid of it. A reciprocity requirement is a law which allows residents state A to do business in state B only if state A allows the same privilege to residents of state B. Sporhase v Nebraska (1982 –Colorado Ground water if you want some of our you have to give us some of yours) 32 1. ii. Typically a 100% ban is not allowed in interstate commerce Minnesota v Clover (1981 – Only carton milk allowed here not plastic) i. f. d. Whether alternative means can promote this local purpose as well without discriminating against commerce? (biggest issue with this case) Reciprocity Requirements i. for the benefit of a preferred processing facility 1. Court said quarantine won’t work as quarantine laws involve deal with things that have to be destroyed immediately such as mad cow. This flow control ordinance squelches competition in the wasteprocessions service leaving no room for investment from outside iii. but for a legitimate purpose – protecting state aquatic ecology ii. Whether the challenged statute regulates evenhandedly with only incidental effects on interstate commerce? 2. Alternative Regulation Measures – less discriminatory means of protection against these threats are unavailable iii. Rule: Under the Commerce Clause a sate may not prohibit as a conservation measure transportation beyond its borders of natural wildlife captured within the state ii. Strict Scrutiny Test 1.

AZ limits the length of freight train cars to 70 or 14 passenger cars) i. Brown Distillers v NY (distillers selling whole sale in the state of NY must sell at the lowest price the distiller charged in any other state for the same month and that price would be binding for the whole month in NY and in the other state) i. because of need of national uniformity. Rule: The reciprocity requirement of the Nebraska statute violates the Commerce Clause as imposing an impermissible burden on interstate commerce as the reciprocity provision operates as an explicit barrier to commerce between Nebraska and its adjoining States. c. Extraterritorial Regulation H.i.State Regulation of Tender Offers a. For a State transportation regulatory statute to be constitutional i. Kassel v Consolidated Freight (1981 – IA doesn’t want 65’ trailer trucks but the state around it are fine with 65’ trucks ) Pike Test i. together with manifested ability to do so. b. IA 55’ truck limit is out of step with all other Midwest states which allow 65’ trucks. Holding: The total effect of the law as a safety measure in reducing accident is so slight and problematical that it does not outweigh the national interest in keeping interstate commerce free form interferences that seriously impede it ii. if any. ii. Groundwater is an article of commerce and therefore subject to congressional regulations. Controlling competition – A states interest in controlling competition is not a valid reason for substantially impeding on interstate commerce b. This is an attempt to regulate the price in other states by mandating that the low price in another state must be but on lock for 30 days a. Southern Pacific Co v Arizona (1945 . Extraterritorial Regulation – The operation of laws upon persons existing beyond the limits of the enacting state – when a state law has the effect of controlling conduct beyond the boundary of the state c. G. or regulate those phases of national commerce which. State Power to Regulation – Dormant Commerce Clause . Uniform National regulation is not required ii. Public Safety and Welfare – is the state’s interest in public safety a welfare is the predominant purpose of the state law 2. Holding: the states safety interest in regulation of train lengths is outweighed by the interest of the nation in an adequate economical and efficient railway transportation service – this the statute is invalid (Pike Balancing Test) ii. be prescribed by a single authority. Non Discrimination iii. demand that their regulation. Tender – an unconditional offer to perform. State Power to Regulation – State as a Market Participant 33 Sc1d9ab169c1e1 . The states cannot impede substantially the free flow of commerce from state to state. Dormant Commerce Clause – State Regulation of Transportation a. Balance of interest favors the state 1. and the production of the subject matter of tender. Economic Protectionism is not limited to attempts to convey advantages to local merchants – it also included attempts to give local consumers and advantage over consumers in other states 1. thus the rule substantially burdens the interstate flow of goods I.

AK was trying to control a market transaction that occurred subsequent to the initial sale of timber by the state 1.When state acts not as regulator but as market participant. Here the state is spending their own money as a buyer or purchaser d. State was a market participant as they are using their spending power (proprietary) . it may discriminate against out-of-staters for any reason. dormant Commerce Clause doctrine does not apply i. 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 c. §2 a.J. Since the state had entered the business of auto salvage – it could require more stringent requirements for out of state cars 1. 4 §2 prohibits a state from denying to out-of-staters privileges (basic rights) that it grants to its own citizens 34 a. Key Notes i. This discriminates is allowed . When state acts as a market participant and not as a regulator. A state is a market regulator when it acts in its sovereign capacity to regulate what other parties can do within their contractual relationships b. state may favor its own citizens 2. P&I clause). By requiring that it be process in state before shipping Privileges and Immunities Clause Art. GR – the privileges and immunities clause of Art. What market is the state participating in 3. v Wunnicke (1984 – AK is in the timber business and its contact says that the timber must be processed in AK before it can be shipped out of state ) i. Hughes v Alexander Scrap (1976 – MD scrap program designed to remove abandoned autos form the state roadways and junkyards) i. Reeves Inc v Stake (1980 – A state-ran cement plant in SD which sells to both in-state and out-of-state buyers but only in-state during the shortage) i. equal protection. 4. Critical issues 1. Limits i. including: Local economic advantage and be immune from a dormant clause analysis ii. A state may discriminate against out-of-staters in the sale of cement by a stateowned cement company ii.A state is a market participant when it is a party to a contract and makes business decisions for itself – thus becoming a private economic actor i. South Central Timber Dev. When a state acts as a market participant whether then a regulator. not its tax power as a regulator 3. . Under an equal protections argument a state cannot treat out of staters worse than in-staters unless it has legitimate reasons for doing so (rational based scrutiny) e. Other constitutional limitations still apply (eg. Cement is a complex manufacturing process and not a natural resource iv. “Nothing in…the Commerce Clause prohibits a state…from participating in the market and…favor[ing] its own citizens over others. State may favor in-state interests over out-of-state interests ii. Market participant . State had essentially entered the market to “bid” for abandoned vehicles ii.” f. The state was now trying to regulate shipping and processing of timber a. Regulator versus market participant 2. iii. The commerce clause responds principally to state taxes and regulatory measures impeding free private trade in the national market place iii.

§2 . This clause only protects individuals.No State shall … pass any … Law impairing the Obligation of Contracts. Standard review in privileges and immunities 1. Only limits states. The constitution prohibits a state from passing a law which impairs the obligations of existing of existing contracts i. means are substantially related and state has the burden of proof (justifying the discrimination) a.The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. Contract Clause a. United Building and Construction Trades Council v Mayor or Camden (1984 – We are building city projects with city funds and we want city workers . an attack on the law would be based on Due Process clause of the 5A ii. The right to own and dispose of property within the state. if federal government pass a law impairing the obligation of a contract. Use Intermediate Scrutiny test iii. Rational Based Scrutiny will apply 1. Substantial state interest. and applies only when a state is discriminating against out-of-states in relation to the exercise of a basic right 2.) i. The π will have the burden of showing either that there is no legitimate reason for the law or that the gov’t has chosen means that are not rational related to achieving the goal c. The right to come into the state to exercise a fundamental right d. §10 – Powers Prohibited of States .ii. c. A city ordinance requiring that certain number of jobs on city funded construction be set aside for city workers is subject to attack under the privileges and immunities of Citizens clause of Art. That it has substantial reason for discrimination and b. Interstate travel iv. State Gov’t i. The basic rights protected are: a. Federal Gov’t i. The K clause has nothing to do with a state passing a law which affects someone’s ability to contract in the future b. K Clause Art1. The courts have balanced the constitutional prohibition of a state impairing the obligations of Ks against the exercise of the states police power iii. If the federal government limits passes a law impairing the obligations of the K. 4 ii. The right of access to state courts c.… 1. b. Justifying the discrimination is on the state b. 1. Art 4. The market participation exception does not overcome the Privileges and Immunity clause of the constitution K. If the courts to pass a law which impairs the obligations of an existing K the courts uses a three part test to determine its constitutionality 35 . not corporations. Right to pursue an occupation is one of the four basic rights iii. the rational basis scrutiny applies ii. This ordinance prevents a portion of non city workers from working there 1. Discrimination permitted only if substantially related to achieving an important or significant state interest.

Must start in the state court and attempt to jump out and into federal court 2.TX want to be in charge staffing any porters going though TX i. as the company has relied on the original plan. e. Federalism . The legislation here had narrow focus. Π seeks to force stay of state proceedings for federal intervention.Abstention Doctrine a. Reasonable conditions are imposed 4. 1. Protects a basic societal interests NOT special interest legislation 2. The state law required the company to pay full pension to employees who had worked for ten or more years 1. This rule will severely impact the company. for both prudential and constitutional reasons i. Rule: A state law adding obligation to a K is subject to a K analysis ii. b. The state courts are the ones best suited to regulate and interpret state law/statutes/regulations… so this case is remanded back for state law to be interpreted ii. and generally the federal court refuses to intervene out of respect to the state courts – “our Federalism”. Pullman abstention: federal courts abstain from exercising jurisdiction where resolution of a constitutional issue turns on an unsettled question of state law. and 2. not intended to protect a broad social interest (only a small group of people) Blaisdell Factors i.d. Does the government have a significant and legitimate reason for the impairment? 3. Applying Intermediate Scrutiny Test (SLRP) 1. requires balancing of private rights and public interests factors: 1. Appropriately tailored to the societal interest 3. Private-Party Contracts: permitted when vital public interests would otherwise suffer. RR of TX v Pullman (Pullman porters are black . Is it appropriate for the public purpose underling the law Allied v Spannaus i. Are the means are appropriately tailored to achieving its goal? a. Must start in the federal court and it is remanded back to the state court just to answer a particular issue ii. iv. Has the law substantially impaired an obligation of an existing K? 2. Here if the TX Supreme court says that the railroad commission does have the authority to issue the discrimination order then the π must go back thought the DC 36 . Main concept: Federal courts will abstain from exercising jurisdiction. 1. Limited to duration of the emergency Federalism A. Is the law bases on reasonable conditions and b. Younger abstention: (Adequate and independent State Doctrine) federal courts abstain from issuing injunctive relief in regard to pending state court criminal proceedings.

A showing of bad faith. Notes: i. Where it is necessary in aid of its jurisdiction and 4. Basically – GR: A state cannot be sued in federal court by its citizens. harassment or other unusual circumstance that would call for equitable relief 2. The action is expressly authorized by an act of congress 3. A state may sue another state in federal court for money damages ii.Pursuant to a proper power source (§5 of 14th Amend. Will work if he is not acting within his lawful authority (Not acting with discretion or unlawfully) ii.Proportionality in the remedy provided.Congruence (document a wide spread patter of these violations) with the factual record of state violations of civil rights. Key Points i. Clear expression .Federalism a.iii. Ex parte Young Doctrine: Allows suits against a state official acting in violation of federal law.Congress clearly expression of intent to abrogate. i. Power . Congruence . If a statute is in place the remedy can be retroactive as long as it is proportional v.Congress may use the 14th Amendment §5 to abrogate (waive) this immunity (need all 4 from Seminole Case) i.Here the only thing the π wants to talk about is the in the TX state court is the validity of the rule c. – not Commerce Clause as we saw in Seminole Tribe case). This act is a state criminal law and the state are better suited to handle these cases (jurisdictional issues) ii. Abrogation . iii. 11th Amendment . To protect or effectuate its judgment B. citizens of another state or foreign state citizens b. 11A sovereign immunity does not apply to political subdivision of state – counties. Note: Remedies include injunctive relief and monetary relief for abrogation d. Here the π will wants to reserve the federal issues by filing an England affidavit in state court . and cities are not immunized by 11A c. townships. Allege that the state officer acted outside the scope of his authority by violating your rights iii. Proportionate . iv. Allege that the state officer violated your federal rights 1. not as an officer of the state 1. Special Circumstance calling for federal intervention 1. If one is only able to argue that the individual violate a state right the 11A will bar the case from federal court iv. Younger v Harris (Harris was passing out literature touting socialism – He was arrested and said the State Criminal Syndicalism Act violated his 1A rights) i. Note: here you can only sue for injunctive relief or perspective damages (retroactive damages not given) e. 1. Holding: The court reversed the DC enjoining of Δ trial in state court as it violates national policy forbidding general rule not to stay pending state court proceeding except under special circumstances iii. 37 . 11A does not apply to federal government – federal agency can sue a state to enforce a federal statute. ii. Name the state officer as an individual.

g.Abrogation) i. Thus. A state can waive its 11A Immunity by a clear and unequivocal statement and consent to be sued in federal court. If the state officer attempts to enforce an unconstitutional law the officer is stripped of official character and is subject to the consequences of his conduct Eldelman v Jordan (Aid to the aged. No authority to abrogate state immunity in Commerce Clause – since the CC came before the states were giving immunity under 11A. Holding: without clear intent to abrogate the states sovereign immunity. Holding: The Eleventh Amendment does not bar suit against a state official acting in violation of federal law.e. cost of compliance going forward 2. The doctrine of Ex parte Young is premised on the notion that a state cannot authorize a state officer to violate the Constitution and laws of the United States. iii. therefore. there must be a pattern of discrimination by the states which violates the 14th Amend. ii. h. Adopted after 11A and ratification of Constitution. Prospective relief – an order requiring timely payment of future benefits – are permitted even thought the funds come from the state treasury a.f. blind or Disabled program funds are being administer wrong violation of the act itself and the 14A) i.Congress must act pursuant to a valid exercise of power a. is not shielded from suit by the state's sovereign immunity. and altered balance of state and federal power. the Indian commerce clause does not grant congress the power ii. Just by IL agreeing to participate in the federal AABD program does not mean that they have waived their immunity 1.Congress must express its intent to abrogate state immunity by a “clear legislative statement. Congress wants to use the 14A §5 to abrogate (waive) the states immunity and allow it to be sued) i. i. so 11A is not controlled by the CC. Second . an action by a state officer that violates federal law is not considered an action of the state and. v Garrett (2001 – American Disable Act is being violated by the states. “[I]n order to authorize private individuals to recover money damages against the states. First . Board of Trustees of Univ. 1. but this doesn’t happen often. Ex parte Young(AG big RR rates and ignored the Federal Court injunction) i. 1. i. Immunity can only be waive where stated in express language or by overwhelming implications from the text iii. ii... Stripping doctrine 1. 11A state immunity can be brought up at anytime in the trail Seminole Tribe of Florida v Florida (1996 – Indian Gaming Regulatory Act – required the state to negotiate w/the tribes regarding gambling .” 2. One cannot sue for retroactive relief under the Young doctrine you can receive prospective relief 1. Did Congress Authorize waiver of state sovereign immunity 1. iii. Retroactive relief – will upset the states balanced budget ii. Section 5 of the 14A allows Congress to abrogate state immunity b. and 38 .

so long as their actions towards such individuals are rational 1. The test for distinguishing appropriate prophylactic legislation under the enforcement section of the Fourteenth Amendment from impermissible substantive redefinition of the Fourteenth Amendment right at issue ii. Courts uses a Rational Basis Scrutiny Test 1. as applied to cases implicating the fundamental right of access to the courts. State regulation regarding the disabled is only subject to rational basis scrutiny j. Florida Prepaid Education Board v College Savings Bank (1999 – Patent Remedy Act . Holding: Congress cannot make states subject to federal court actions for patent infringement because they lacked evidentiary support that states were depriving owners of their interest in patents made the law out of portion to the supposed remedial objective ii. nor voluntarily waived by the State's activities in interstate commerce n. Hans v Lousiana (1890 -) i.” ii. Holding. Holding: The states sovereign immunity was neither validly abrogated by the Trademark Remedy Clarification Act (TRCA). constitutes a valid exercise of Congress' enforcement power under the Fourteenth Amendment o. Holding: States are not required by the Fourteenth Amendment to make special accommodations for the disabled. Here the court said that in order for properly prophylactic §5 legislation there must be widespread and persisting deprivation of constitutional rights m. if special accommodations for the disabled are to be required.State employees may recover money damages in federal court in the event of the state's failure to comply with the family-care provision of the Family and Medical Leave Act (FMLA) ii. College Savings Bank v Florida Prepaid Education Board (1999 -) i. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent 39 2. Valid prophylactic legislation must exhibit congruence (pattern of discrimination) and proportionality between the injury to be prevented or remedied and the means adopted to that end l. Nevada Dept of Human Resources v Hibbs (2003 – Family and Medical Leave Act – New Mom and Dads get different leave – Male worker is suing) i. Holding .therefore private damages as a remedy allowed 1. Test – for Prophylactic Legislation i.) i. Here the court said congress had §5 power to abrogate state immunity .Title II of the ADA.the remedy imposed by Congress must be congruent and proportional to the targeted violation. Each state is a sovereign entity in the US federal system ii. Tennessee v Lane (2004 – ADA Title II – access to courts by use of ramps) i. they have to come from positive law and not through the Equal Protection Clause iii. Here the states were participating in gender based discrimination in the workplace k. Here the court said congress did not have §5 power to abrogate state immunity – therefore no private damages as a remedy allowed (therefore not a valid power source) iv. .

Holding: Congress may not prohibit private discriminatory actions by facilities generally open to the public ii. Performing a government function or 2. since the CRA is directed towards acts of the individual cannot be upheld under the 14A iii. The courts will ask whether the private actor is: 1. The “state action” requirement becomes an issue when a private actor harms someone in such a way that a constitutional issue would arise if: i. The harm were inflicted by a government actor and ii. To what extent does the private actor rely on governmental assistance and benefits? ii. The 14A permits congress to take correction action only against state laws or acts done under state authority. In order to assert that a private actor violated ones constitutional right a π must be able to argue that the private party’s actions are sufficiently imbued (steeped/infused) with state action to make the constitution possible i. General Analysis of State Action Question (3 Factors) i. Whether the actor is performing a traditional governmental function that has been engaged in exclusively by government? iii. 13th Amendment – prohibits slavery whether engaged in by a government actor or by a private actor ii.A state can only be sue with the consent of the state State Action a. The Civil Rights Cases (1883 –Civil Rights Act of 1875) i. When there is some reason to impute government actor to the private individual who caused the harm b. 14th (due process citizen rights) and 15th (Race no bar to vote) amendments .1. Terry v Adams (1953 . Most provisions of the constitution that protect individual rights limit government actors. Is the state sufficiently involved with or 3. Whether the injury caused is aggravated in a unique way by government intervention? d. 40 . Has the state sufficiently encouraged the private parties actions so as to be held to the state’s constitutional obligation e. State Action – Government Function a. AKA . but are irrelevant when a private actor abridges someone’s rights 1. Key Notes i. Bill of rights . Plain English – the π can show that there is enough of a connection between the private actor and a government so that the court will treat the private actor as if he or she is the equivalent of a government actor c.limits the federal government 2.discrimination during the primary) C. Smith v Allwright (1944 – discrimination during the primary) i. Here congress had no power to pass the CRA and π must seek a remedy under state law for cause of action against private individuals that are discriminating D.limit state government 3. The court held invalid a state action in which authority was given to a political party to determine who can vote in primary elections for which the party nominee for the general election is chosen – subject to the 15A b.

its power to represent and bind all member of a class is derives solely from Congress a. d. f. e. Here there is a state action as the government official act as trusties of a racial discriminatory private will a. Because the park had been under the function of the city is now was sufficiently involved with the state to be held to the state constitutional obligation 3. Ownership does not always mean absolute dominion a. and it is irrelevant that he might have taken same action had he acted in purely private capacity or that particular action which he took was not authorized by state law. Performing a government function 2. for use by the public in general. Griffin v Maryland (Private amusement park hired a state deputy sheriff to keep its park segregated) 1. Holding: Because the facilities are built and operated primarily to benefit the public and since their operation is essentially a public function. Here through the Railroad Act the union was given statutory power from congress Private Function i. The more a owner opens his property. Marsh v Alabama (1946 – Jehovah witness on the sidewalk with literature in a town owned by a corporation) 1. Once the state had control of the land it served a governmental function 2. i. Is electricity a substantive right Statutory Bargaining Agents i.c. The area is relatively limited in nature and does not serve a governmental function nor are they sufficiently involved with or encouraged by the state so as to be held to the state’s constitutional obligation Public Parks i. Holding: no state action is involved when the owner of a privately owned shopping center excludes speakers from the shopping center 2. the more do his rights become circumscribed by the statutory and constitutional rights of those who use it 2. State action may also be present if there are enough connections between a city and land devised for use as a whites only park a. to his advantage. g. his action is “state action”. it is subject to state regulation Shopping Centers i. Evans v Newton (1966 –land devised to the state with a condition subsequent for whites only) 1. 41 . If an individual is possessed of state authority and purports to act under that authority. Steel v Louisville (1944 – Union reps bargained aggressively for white member and not so for black members) 1. The court held invalid a state action structuring the state’s electoral apparatus to vest in a political party the power to hold a primary from which black person are excluded – subject to the 15A Private Company Towns i. While the unions are a private organization. Hudgens v NLRB (1976-union member want to picket in front of the store) 1.

Business Regulation i. Shelly kinda says that so long as it is unconstitutional for a state to require racial segregation by zoning status it is equally unconstitutional for the state to bring it about by any other form of state action b. Shelly v Kramer (1948 – Racially discriminate property covenants) i. A corporation that is crated and controlled by the government is subject to constitutional restrictions 1.State constitutional authorization of racial discrimination a. Corporations i.Performing a government function (no) or Is sufficiently involved with or encouraged by the state so as to be held to the state’s constitutional obligation (no) 4. The injury is aggravated in a unique way by the incidents of governmental authority c. Here the court said that supplying electricity was not traditionally the exclusive prerogative of the state. Holding: the 14A prohibits judicial enforcement by state courts of restrictive covenants based on race ii. Where state action aids in private discrimination that state action is deemed illegal i. 42 . F. Reitman v Mulkey (1967 . A public utility. A corporation is a government actor when it is created by a special congressional statute which establishes detailed goals for the corporation sets forth is structure and powers. The mere fact that the business is subject to state regulation does not by itself convert its action into that of the state for the purposes of the 14A 3. Borrows v Jackson (1953 – homeowner seeking money damages from a co covenantor for sell their house to a black person) i.E. and gives the president the power to appoint a majority of its board of directors State Action – State Involvement or Encouragement a. is not a state actor 2. even if granted monopoly status by a state. This was essentially a private act of discrimination that became illegal state action once one of its officers becomes involved in carrying out the discrimination 1. This is used exclusively where a white homeowner breaches a restrictive covenant with other white homeowners not to sell to black buyers 1. Here the court held that an action by a covenantor to recover damages form a property owner who sold to an African American was barred by equal protection ii. Here it is the state court which is directly preventing the black buyer from moving into the house ii. Here neither questions are affirmative .§26 of Cali Constitution allows private property owners to discriminate) h. If the state court awarded damages against the white seller it would be tantamount to imposing a penalty against the white seller for refusing to discriminate State Action . Property rights are clearly among those civil rights protected from discriminatory state action by the 14a iii. Jackson v Metropolitan Edison (1974 – light were turned off for failure to pay bill) 1. So once a private action gets in to court they may then amount to state action iv. so no state action could be imposed to the electric company i.

refuses to rent an apartment because of the race of the lessee ii. (1995) 1. Factors – state subsidies given. Here the lodge was not serving a government function nor was it sufficiently encourage or entwined with the state c. San Francisco Arts & Athletics. Service to the public does not render private activity a state action – nor does a symbiotic relationship as the gov’t does not profit iv. (1987) 1. Gilmore v. Lebron v. encouraged. Norwood v. or facilitated the conduct – may rise to the level of state action b. and was substantially federally funded. and regulated by federal law ii. G. 2. U.i. State action exist when a private party relying on a state constitutional provision. SUBSIDIES i. Montgomery (1974) (state action where city gave discriminatory private schools exclusive access to city’s parks and other recreational facilities). Early cases found that state subsidies resulted in state action: ii. Olympic Comm. State Action – Recent Developments a. Moose Lodge v Irvis (1972 – State licensing case – A black person was refused service by Moose) i. Here the right to discriminate was included in the state constitution and this provision involved the state in racial discrimination in the housing market by effectively encouraging discrimination iii. A state granting a liquor license to a private bar or club does not make it a state actor ii. Holding: Actions by a private school’s which is used by the state to fulfill a legislative requirement do not qualify as state actions ii. Corporate entities i. Both parties benefit from each other iii. National Railroad Passenger Corp. amount of regulation (how much of what was done is by private discretion). partially federally funded. Rendell-Baker v Kohn (1982 – discharge school employees sued under §1983 – the school was publicly funded. USOC not part of government even though chartered by Congress. NRPC (Amtrak) was part of government because it was created by federal law. The state has significantly involved itself with invidious discrimination b. regulated. had a board appointed by President. Harrison (1973) (state action where government gave textbooks to private schools that discriminated on account of race) iii. Here there is nothing approaching the symbiotic relationship between the state and the private party to create a state action 1.S. Is the private company performing a public function and was there a symbiotic relationship c. Amtrack is a state actor as it is a federally created entity d. Lugar v Edmonson Oil (1982 – Oil company was not paid by a truck stop – sued the state because the state law sough attachment of certain of the debtors property) 43 . students were referred by the state – publicly funded school) i. Main concept: Private conduct that is excessively entangled with the state – the state has affirmatively authorized. Inc v. The school was regulated by the gov’t but its decisions to discharge is not compelled or influenced by state regulation iii.

Right to counsel furnished in criminal cases but not in others b. it was heavily intertwined with the public school system 1. Holding: even if the a private association. and 3. Government heavily involved in jury selection DeShaney v Winnebago Dept of Social Services (1989 –No state action when injuries are inflicted by private parties – child died in parent custody) i. this was simply a self help remedy one means among many to resolve a dispute ii. There could be no association but for the participation of public official Peremptory challenges in jury selection i. f. Here there was no state actor participating as was in Lugar Brentwood Academy v Tennessee Secondary School Athletic Association (they were basically so entwined with the state that they actions were those of the state) i. Leesville Concrete Co.e. liberty or property only if it follows reasonable procedures to minimize the risk of an erroneous or unfair deprivation c. State board of education member serves as members of its governing body. Three main requirements of due process i. Impartial decision maker. Notice. g. Edmonson v. The activity sought to be characterized as state action must be an exclusive gov’t function. A state’s failure to protect an individual from violence by a private party does not constitute a violation of the due process clause. Procedural Due Process a. Its members were allowed to participate in the state retirement system. Kentucky (1986) held that equal protection prohibited state prosecutor from using peremptories to racially discriminate ii. and iii. What process is due? 44 . Has there been or is there about to be a deprivation? iii. i. ii. Batson v. Three questions (from Shafer) i. (1991) applied Lugar analysis to extend Batson to civil cases 1. ii. Mere acquiescence by the state is insufficient 2. 2. Because the state authorized the court clerk and the sheriff to authorize a prejudgment attachment of a debtors property this was state action Flag Brothers v Brooks (1978 – Per the UCC the storage facility threatened to sell B’s possession) i. h. Main concept: the government may lawfully deprive a person of life. State and federal laws authorize peremptories 2. Is there a life liberty or property interest involved? If no due process not an issue. The gov’t has not obligation to protect a person from harm by another person unless that person is in state custody/control Due Process A. A hearing or opportunity to respond 1. Holding: Just because an action is permitted by state law does not make private actions those of the state 1. 1.

It also includes interest already acquired in specific benefits – nontraditional property such as welfare or disability payments or public education 3. The private interest affected by the gov’t actions 2. and 3. it must be determined how much procedural protection is required – Use these 3 factors 1. Includes i. Both 5A and 14A protect against deprivation of “life. Nature of private individual interest ii. Right to K b.d. Risk of deprivation and benefit of additional procedural safeguards iii. Right to freedom of person iii. Three Prong Balancing Analysis (from Prygoski) i. Government interest 3 dimensions of due process i. g. Can be state or federal law a. e. One you have identified the liberty or property interest that has been abridged. Public employment iii. Welfare and other public benefits ii. Includes a. Connotes freedom from bodily restraints imposed by the criminal process 2. sometimes statues have procedural due process within it. The constitution does not create property interest there must already be a legitimate claim 4. h. Other lower level liberty interest – get rational basis scrutiny iii. Fundamental rights which have a strict scrutiny i. Right – which are being violated (liberty or right to school) ii. chattel. The gov’t interest including the added fiscal and administrative burdens that the new procedure requires Note: i. Includes actual ownership of realty. Property 1. License to engage in trade or profession (includes driver licenses) Mathews v Eldridge (balancing test – analytical model) i. The risk of erroneous deprivation of the interest through the procedure presently in place. f. so if you can show that the statues procedures have been violates – you have an easy win Due Process i. engage in gainful employment. Procedural due process applies to a number of civil issues where freedom of movement or exercise of fundamental right is curtailed 4. Liberty 1. liberty. or property” w/o due process of law ii. or money 2. Right to privacy ii. It also includes the right to contact. Timing (When) – GR hearing before deprivation 45 . and generally to enjoy those privileges long recognized at CL as essential to the pursuit of happiness 3.

Roth (1972 – Non tenured at will professor was terminated) 1. Due process has a sliding scale Public Employment i. Scope – (how much) 1. Rule: no hearing is required before a student is dismissed for academic reasons Gov’t Benefits a Property i. Welfare benefits are needed for subsistence the consequences for her are to server to have this happen without due process (most amount of due process) 1. k. This is a sliding scale 2. j. Board of Curators v Horowitz (1978 – med student dismissed for academic reasons) 1. Emergency situation where there is an urgent national security issue or a extreme public policy reason – deprivation can be immediate iii. The greater the harm the more Due Process is required 3. Procedural due process was necessary as he has an property interest in his job Education as Property i.i. Perry (had an implied tenure) 1. Just needed basic notice and a right to respond (least amount of due process) ii. GR: Gov’t benefits will be considered property for procedural due process if the recipient is “entitled” to receive the benefit 1. Entitlement exist – (as oppose to mere expectation) when under the law granting the benefit the recipient is entitled to receive the benefit as long as specific conditions of eligibility are met ii. Goldberg → Gray Panthers→ Goss Key Notes: i. Goss (1975 – Student given a temporary disciplinary suspension – 10 days or less) 1. He had been working there for over 10 years and typically this entitles you to a tenure it is almost automatic. l. Rule: before a public school student is given a temporary disciplinary suspension he must be given notice of the reason and a least an informal opportunity to respond to the charges 2. Goldberg v Kelly (1970 – welfare recipients are entitled to pre-termination hearing) a. 46 . As there were no expressed or implied (after 10 years one typically gets tenured) tenure he lacked property interest in his job ii.

the more do his rights become circumscribed by the statutory and constitutional rights of those who use it 2. Once the state had control of the land it served a governmental function 2. State Action – Government Function a. The court held invalid a state action in which authority was given to a political party to determine who can vote in primary elections for which the party nominee for the general election is chosen – subject to the 15A b. Hudgens v NLRB (1976-union member want to picket in front of the store) 1. The more a owner opens his property. for use by the public in general. Holding: Because the facilities are built and operated primarily to benefit the public and since their operation is essentially a public function. since the CRA is directed towards acts of the individual cannot be upheld under the 14A iii. Here there is a state action as the government official act as trusties of a racial discriminatory private will a.discrimination during the primary) i. Ownership does not always mean absolute dominion a. it is subject to state regulation d. Private Company Towns i. Smith v Allwright (1944 – discrimination during the primary) i. to his advantage.ii. State action may also be present if there are enough connections between a city and land devised for use as a whites only park 47 . The court held invalid a state action structuring the state’s electoral apparatus to vest in a political party the power to hold a primary from which black person are excluded – subject to the 15A c. Public Parks i. Evans v Newton (1966 –land devised to the state with a condition subsequent for whites only) 1. Holding: no state action is involved when the owner of a privately owned shopping center excludes speakers from the shopping center 2. Terry v Adams (1953 . Marsh v Alabama (1946 – Jehovah witness on the sidewalk with literature in a town owned by a corporation) 1.The 14A permits congress to take correction action only against state laws or acts done under state authority. Shopping Centers i.Here congress had no power to pass the CRA and π must seek a remedy under state law for cause of action against private individuals that are discriminating D. The area is relatively limited in nature and does not serve a governmental function nor are they sufficiently involved with or encouraged by the state so as to be held to the state’s constitutional obligation e.

Here neither questions are affirmative . Corporations i. Jackson v Metropolitan Edison (1974 – light were turned off for failure to pay bill) 1. Here through the Railroad Act the union was given statutory power from congress g. and gives the president the power to appoint a majority of its board of directors E. his action is “state action”. Is electricity a substantive right f.a. its power to represent and bind all member of a class is derives solely from Congress a. Private Function i. Statutory Bargaining Agents i. is not a state actor 2. Griffin v Maryland (Private amusement park hired a state deputy sheriff to keep its park segregated) 1. Because the park had been under the function of the city is now was sufficiently involved with the state to be held to the state constitutional obligation 3. A corporation that is crated and controlled by the government is subject to constitutional restrictions 1. h. The mere fact that the business is subject to state regulation does not by itself convert its action into that of the state for the purposes of the 14A 3. A public utility. even if granted monopoly status by a state. so no state action could be imposed to the electric company i. Where state action aids in private discrimination that state action is deemed illegal 48 . and it is irrelevant that he might have taken same action had he acted in purely private capacity or that particular action which he took was not authorized by state law. Here the court said that supplying electricity was not traditionally the exclusive prerogative of the state. Business Regulation i. If an individual is possessed of state authority and purports to act under that authority. State Action – State Involvement or Encouragement a. A corporation is a government actor when it is created by a special congressional statute which establishes detailed goals for the corporation sets forth is structure and powers. While the unions are a private organization. Performing a government function 2.Performing a government function (no) or Is sufficiently involved with or encouraged by the state so as to be held to the state’s constitutional obligation (no) 4. Steel v Louisville (1944 – Union reps bargained aggressively for white member and not so for black members) 1.

The injury is aggravated in a unique way by the incidents of governmental authority c. Both parties benefit from each other iii. Moose Lodge v Irvis (1972 – State licensing case – A black person was refused service by Moose) i. A state granting a liquor license to a private bar or club does not make it a state actor ii.§26 of Cali Constitution allows private property owners to discriminate) i. refuses to rent an apartment because of the race of the lessee ii.Here there is nothing approaching the symbiotic relationship between the state and the private party to create a state action 1. Borrows v Jackson (1953 – homeowner seeking money damages from a co covenantor for sell their house to a black person) i. Shelly v Kramer (1948 – Racially discriminate property covenants) i.If the state court awarded damages against the white seller it would be tantamount to imposing a penalty against the white seller for refusing to discriminate F.Here the right to discriminate was included in the state constitution and this provision involved the state in racial discrimination in the housing market by effectively encouraging discrimination iii. Holding: the 14A prohibits judicial enforcement by state courts of restrictive covenants based on race ii.Property rights are clearly among those civil rights protected from discriminatory state action by the 14a iii.Shelly kinda says that so long as it is unconstitutional for a state to require racial segregation by zoning status it is equally unconstitutional for the state to bring it about by any other form of state action b.State constitutional authorization of racial discrimination a.i. Here the court held that an action by a covenantor to recover damages form a property owner who sold to an African American was barred by equal protection ii.Here the lodge was not serving a government function nor was it sufficiently encourage or entwined with the state 49 . This is used exclusively where a white homeowner breaches a restrictive covenant with other white homeowners not to sell to black buyers 1. State Action . So once a private action gets in to court they may then amount to state action iv.This was essentially a private act of discrimination that became illegal state action once one of its officers becomes involved in carrying out the discrimination 1. State action exist when a private party relying on a state constitutional provision. Here it is the state court which is directly preventing the black buyer from moving into the house ii. Reitman v Mulkey (1967 .The state has significantly involved itself with invidious discrimination b.

Service to the public does not render private activity a state action – nor does a symbiotic relationship as the gov’t does not profit iv. Early cases found that state subsidies resulted in state action: ii. State Action – Recent Developments a. and regulated by federal law ii. had a board appointed by President. Montgomery (1974) (state action where city gave discriminatory private schools exclusive access to city’s parks and other recreational facilities). regulated. this was simply a self help remedy one means among many to resolve a dispute ii.The school was regulated by the gov’t but its decisions to discharge is not compelled or influenced by state regulation iii. Olympic Comm. partially federally funded. Lugar v Edmonson Oil (1982 – Oil company was not paid by a truck stop – sued the state because the state law sough attachment of certain of the debtors property) i.Gilmore v.Lebron v. Flag Brothers v Brooks (1978 – Per the UCC the storage facility threatened to sell B’s possession) i.Norwood v. SUBSIDIES i. (1987) 1. Harrison (1973) (state action where government gave textbooks to private schools that discriminated on account of race) iii. San Francisco Arts & Athletics. or facilitated the conduct – may rise to the level of state action b. (1995) 1. Inc v. 2. students were referred by the state – publicly funded school) i. Corporate entities i.Here there was no state actor participating as was in Lugar 50 .S.Factors – state subsidies given. Mere acquiescence by the state is insufficient 2. The activity sought to be characterized as state action must be an exclusive gov’t function. Because the state authorized the court clerk and the sheriff to authorize a prejudgment attachment of a debtors property this was state action e. Amtrack is a state actor as it is a federally created entity d. USOC not part of government even though chartered by Congress. NRPC (Amtrak) was part of government because it was created by federal law.c. National Railroad Passenger Corp. Is the private company performing a public function and was there a symbiotic relationship c. Holding: Just because an action is permitted by state law does not make private actions those of the state 1. Main concept: Private conduct that is excessively entangled with the state – the state has affirmatively authorized. amount of regulation (how much of what was done is by private discretion). G. Holding: Actions by a private school’s which is used by the state to fulfill a legislative requirement do not qualify as state actions ii. encouraged. U. and was substantially federally funded. Rendell-Baker v Kohn (1982 – discharge school employees sued under §1983 – the school was publicly funded.

A hearing or opportunity to respond 1. (1991) applied Lugar analysis to extend Batson to civil cases 1. it was heavily intertwined with the public school system 1. Holding: even if the a private association. Leesville Concrete Co. it must be determined how much procedural protection is required – Use these 3 factors 1. liberty or property only if it follows reasonable procedures to minimize the risk of an erroneous or unfair deprivation c. Main concept: the government may lawfully deprive a person of life.Has there been or is there about to be a deprivation? iii. State board of education member serves as members of its governing body. The risk of erroneous deprivation of the interest through the procedure presently in place. Three Prong Balancing Analysis (from Prygoski) i. Is there a life liberty or property interest involved? If no due process not an issue.Edmonson v. Three questions (from Shafer) i. There could be no association but for the participation of public official g. 2. and iii. and 3. ii. One you have identified the liberty or property interest that has been abridged. Government heavily involved in jury selection h. ii. Kentucky (1986) held that equal protection prohibited state prosecutor from using peremptories to racially discriminate ii. Three main requirements of due process i. Brentwood Academy v Tennessee Secondary School Athletic Association (they were basically so entwined with the state that they actions were those of the state) i. DeShaney v Winnebago Dept of Social Services (1989 –No state action when injuries are inflicted by private parties – child died in parent custody) i. Impartial decision maker.What process is due? d. State and federal laws authorize peremptories 2. The gov’t has not obligation to protect a person from harm by another person unless that person is in state custody/control Due Process A.f.Notice. Batson v. Procedural Due Process a. A state’s failure to protect an individual from violence by a private party does not constitute a violation of the due process clause. The private interest affected by the gov’t actions 2. 1. and 51 . Right to counsel furnished in criminal cases but not in others b. Its members were allowed to participate in the state retirement system. Peremptory challenges in jury selection i.

so if you can show that the statues procedures have been violates – you have an easy win f. The constitution does not create property interest there must already be a legitimate claim 4.Liberty 1.Timing (When) – GR hearing before deprivation 1. Both 5A and 14A protect against deprivation of “life. or money 2. Right to privacy ii. Includes actual ownership of realty.Risk of deprivation and benefit of additional procedural safeguards iii.Public employment iii. or property” w/o due process of law ii. Can be state or federal law a. Emergency situation where there is an urgent national security issue or a extreme public policy reason – deprivation can be immediate 52 . Other lower level liberty interest – get rational basis scrutiny iii. sometimes statues have procedural due process within it. chattel. Welfare and other public benefits ii. and generally to enjoy those privileges long recognized at CL as essential to the pursuit of happiness 3. Fundamental rights which have a strict scrutiny i. engage in gainful employment. liberty.3. Due Process i. Right – which are being violated (liberty or right to school) ii. Includes a.Property 1. It also includes interest already acquired in specific benefits – nontraditional property such as welfare or disability payments or public education 3. Connotes freedom from bodily restraints imposed by the criminal process 2. 3 dimensions of due process i. Nature of private individual interest ii. Includes i.Government interest h.Right to freedom of person iii. Mathews v Eldridge (balancing test – analytical model) i. Note: i. It also includes the right to contact. Procedural due process applies to a number of civil issues where freedom of movement or exercise of fundamental right is curtailed 4.License to engage in trade or profession (includes driver licenses) g.Right to K b. The gov’t interest including the added fiscal and administrative burdens that the new procedure requires e.

The greater the harm the more Due Process is required 3. Rule: no hearing is required before a student is dismissed for academic reasons l.iii. GR: Gov’t benefits will be considered property for procedural due process if the recipient is “entitled” to receive the benefit 1. Goldberg → Gray Panthers→ Goss i. Key Notes: i.Board of Curators v Horowitz (1978 – med student dismissed for academic reasons) 1.Perry (had an implied tenure) 1. Roth (1972 – Non tenured at will professor was terminated) 1. As there were no expressed or implied (after 10 years one typically gets tenured) tenure he lacked property interest in his job ii. This is a sliding scale 2.Goldberg v Kelly (1970 – welfare recipients are entitled to pretermination hearing) a. Rule: before a public school student is given a temporary disciplinary suspension he must be given notice of the reason and a least an informal opportunity to respond to the charges 2. Due process has a sliding scale j. Goss (1975 – Student given a temporary disciplinary suspension – 10 days or less) 1. Education as Property i. Just needed basic notice and a right to respond (least amount of due process) ii. Public Employment i. Welfare benefits are needed for subsistence the consequences for her are to server to have this happen without due process (most amount of due process) 53 . Entitlement exist – (as oppose to mere expectation) when under the law granting the benefit the recipient is entitled to receive the benefit as long as specific conditions of eligibility are met ii. Gov’t Benefits a Property i. Procedural due process was necessary as he has an property interest in his job k.Scope – (how much) 1. He had been working there for over 10 years and typically this entitles you to a tenure it is almost automatic.

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