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FEDERAL JUDICIAL POWER Article 3 of the Constitution defines power of the Federal Courts A.

A. Authority for Judicial Review 1. Marbury v. Madison (1803) authority for judicial review of the constitutionality of legislative and executive actions Not in the text this case created this authority province and duty of the judicial department to say what the law is 2. State Court Judgments actions of state court judgments and the acts of state officials to make sure they are in conformance constitution Martin v. Hunters Lessee Cohens v. Virginia

B. Requirements for Cases and Controversies Article 3 defines the federal judicial power using cases and controversies limits on the federal judicial powers (justicability doctrines) C. Political Questions Refers to allegations of constitutional violations that the federal courts will not adjudicate - left to the elected, political branches 1. Republican Form of Government Clause/ Guarantee Clause Article 4 Section 4 the U.S. shall guarantee to each state a republican form of government 2. Challenges to the Presidents Conduct of Foreign Policy 3. Challenges to the Impeachment/Removal Process 4. Partisan Gerrymandering FEDERAL LEGISLATIVE POWER Article 1 of the Constitution defines Congresss powers A. No general Federal Police Power For Congress to act there must be express or implied authority in the Constitution Congress cannot do anything but what is authorized by the Constitution State and Local Governments can do whatever is not prohibited by the Constitution this is called police power

B. Necessary and Proper Clause 1. Article 1 Section 8 Congress can take all acts necessary and proper to carry its authority 2. McCulloh v. Maryland 1

Congress may choose any means not prohibited by the Constitution that reasonably carries out its authority Article 1 Section 8 Congress may raise an Army and a Navy; Congressional national bake sale to raise the money for the army and navy means not prohibited by the Constitution

C. Taxing/Spending & Commerce Powers 1. Congress may tax and spend for the general welfare Create any tax to raise revenue and any spending program that it believes would serve the general welfare Antithetical to no police power 2. Congress can regulate commerce with foreign nations, Indian tribes and among the states Federal regulatory statutes were mainly adopted under the commerce power (including criminal and environmental laws) Gibbons v. Ogden Commerce can regulate all forms of intercourse as they go across state lines 1937-1995 not one federal law was declared unconstitutional as exceeding the scope of Congresss commerce clause authority United States v. Lopez (1995) Federal Gun Free School Zone Act Federal Crime to have a firearm within 1,000 feet of a school exceeded the scope of Congresss commerce clause authority In order for congress to act under: 1. Congress can regulate the channels of interstate commerce (Places where commerce occurs highways, waterways, internet) 2. Instrumentalities of interstate commerce (persons and things in interstate commerce) (Things that facilitate commerce, trucks, planes, telephones, internet- Prostitution) 3. Activities that have a substantial effect of interstate commerce Wickward Limiting the amount of wheat farmers can grow for home consumption (aggregate effect on interstate commerce Gonzalez v. Raich prohibit the cultivation and possession of medicinal marijuana bought and sold in interstate commerce economic activity United States v. Morrison- Cannot regulate non-economic by finding that the cumulative impact creates a substantial effect Civil Damage Provision of Violence against Women Act; Sexual Assault is non-economic activity 2

Questions A. Is congress regulating economic activity? B. Is there a substantial effect based on the cumulative effect across the country? D. 10th Amendment all powers not granted to the united states, nor prohibited to states are reserved to the states and the people respectively 1. Congress cannot compel state legislative or regulatory activity New York v. United States- Disposal Nuclear Waste Congress was commandeering states and forcing them to enact regulations- Unconstitutional Prince v. United States Background Checks for Fire-Arms- Conscripting state and local governments- Unconstitutional Congress can induce state and local governments to act by offering grants allowed as long as conditions are clearly stated and relate to the purpose of the program South Dakota v. Dole Drinking Age/Highway Grant no federal mandate

2. Congress may prohibit harmful commercial activity by state governments Reno DMV lists; Congress was not imposing affirmative duties; it was prohibiting harmful commercial activity- Constitutional E. Congresss Power under Section 5 of the 14th Amendment Authorizes congress to draft laws to enforce the 14th Amendment pursuant to Section 5 of the 14th Amendment Congress cannot create new rights or expand the scope of rights; All Congress may do is act to prevent or remedy violation of rights already recognized by the courts Narrowly Tailored Proportionate and congruent to remedy proven constitutional violations Flores

FEDERAL EXECUTIVE POWER Article 2 of the Constitution defines the power the president and the executive branch of government A. Authority for Foreign Policy 1. Treaties Agreement between the U.S. and a foreign country negotiated by the President and ratified by the Senate State laws that conflict with treaties are invalid (i.e. hunting of bald eagles) Conflict between treaty and a federal statute, the one adopted last in time controls (most recently) Treaties are invalid if they conflict with the Constitution (supreme law of the land) 2. Executive Agreements - Between the U.S. and a foreign Country effective when signed by the president no senate approval is required - Can be used for any purpose - Prevail over conflicting state laws but never over conflicting federal laws or the Constitution 3. Commander and Chief - Broad powers to use American troops in foreign countries B. Domestic Affairs 1. No limit exists on Congresss power to delegate power to executive agencies 2. Appointment and Removal power A. Appointment Power - President appoints ambassadors, federal judges and ambassadors of the U.S. - Senate must confirm nomination for the appointment to take place - Congress may vest the appointment of inferior officers in the President, the heads of departments or in the lower federal courts - Congress cannot give the appointment power to itself or to its officers B. Removal - President can fire any executive branch official unless limited by statute - Nixon firing head prosecutor - Congress can limit removal if: 1. Officer were independence from the president is desirable (not the cabinet can pass legislation for independent counsel who investigates the president) 2. Cannot prohibit removal, it can Limit removal to where there is good cause 3. Legislative and Line Item Veto - Veto Power : If the President approves of the legislation, he signs it into law). According to Article 1. Section 7 of the Constitution, when the president chooses, if he does not approve, he must return the bill, unsigned, within ten days, excluding Sundays, to the house of the United States Congress in which it 4

originated, while the Congress is in session. The President is constitutionally required to state his objections to the legislation in writing, and the Congress is constitutionally required to consider them, and to reconsider the legislation. This action, in effect, is a veto. - Unconstitutional Legislative veto Presented to the president to sign, not bicamral - Unconstitutional - Line item veto is when the president vetos part of the bill while signing the rest of the law 4. Executive Privilege

FEDERALISM Limits on state and local government power due to the existence of Federal Government A. Preemption Article 6 of the Constitution Supremacy Clause Supreme Law of the Land conflict between federal law and local law, federal law wins out and local law is preempted 1. Express Preemption If statute says federal law is exclusive in a field, the state and local law is preempted express preemption Whenever Congress has the authority to act, Congress can declare that federal law is exclusive i.e. beef grade labeling 2. Implied Preemption - When statute is silent - If the federal law and state law are mutually exclusive than state law is deemed preempted When its not possible to comply with both If state and local law impedes achievement of federal objective If congress evidences an intent to preempt local laws than the law is preempted 3. States cannot tax or regulate federal government activity - McCulloh v. Maryland - The power to tax is the power to destroy - Unconstitutional to pay a state tax directly out of the federal treasury B. Dormant Commerce Clause/ Privileges and Immunity Clause of Article IV Does the Local Law Discriminate against out of staters? 1. Dormant Commerce Clause Limit on what state and local government can do Commerce clause authority for Congress to Act, Dormant is a limit on what state and local governments can do Depends on who is the actor in the question if its congress doing something than its commerce, if its the state and local government doing something than dormant State and local laws are unconstitutional if they place an undue burden on interstate commerce Inferred from the Constitution, not directly stated in the Constitution- power to regulate commerce among the states 2. Privileges and Immunities Clause (only applies when there is discrimination)

No state may deprive any citizens of other states the privileges and immunities it accords its own citizens Anti-Discrimination Provision Only the right answer when it involves the right to travel Slaughter House Cases such a narrow understanding that it reads it out of the Constitution Signs Welfare state rediscovers Privileges and Immunities Clause discriminating against new residents against older residents

3. Analysis if the Law Does not Discriminate If the State or Local Law DOES NOT discriminate against out of staters: privilege and immunities does not apply If the law does not discriminate and puts a burden on interstate commerce the law violates the dormant commerce clause if the burdens of interstate commerce outweighs the benefits of the law (Balancing Test)

4. Analysis if the Law Discriminates Dormant Commerce Clause If the law puts a burden on interstate commerce it must be necessary/compelling government interest being served otherwise it violates the Dormant Commerce Clause Maine v. Taylor bait fish upheld even though it was discriminatory Must show that there is no less discriminatory alternative to achieve the objective If the law is discriminatory against out of staters and puts a burden on interstate commerce it will only be allowed if it showed that it is necessary and the least restrictive means necessary to pursue a compelling government interest Privileges and Immunities Clause If a state or local law discriminates against out of staters in regard to their ability to earn a livelihood it violates the privileges and immunity clause unless it is necessary to achieve an important government purpose Must be discrimination against out of staters Must be in regard to civil liberties or the ability to earn a living (dont get litigated under this clause even if it could be) Piper v. New Hampshire unconstitutional because it limited the ability of out of staters to earn a living Does not apply to Corporations or non-citizens Only If it is necessary to achieve an important/substantial government purpose no less discriminatory alternative is available

STRUCTURE OF THE CONSTITUTIONS PROTECTION OF INDIVIDUAL LIBERTIES Constitutions protection of individual liberties and civil rights A. Is there Government Action? - Constitution applies only to government action, not private conduct which does not have to comply Duke private university; first amendment does not apply State University first amendment applies Exceptions Public functions exception if a private entity is performing a task traditionally exclusively done by the government, the constitution applies (I.e owning the land in a town, but not utilities) Entanglement Exception government facilitates unconstitutional conduct, the constitution applies Buront v. Willimgton Parking - Government leased the premises a restaurant that racially discriminated Unconsitutional But , in the cases regarding schools that receive public funding = does not meet this entanglement excpetion B. Bill of Rights and the States - Protection of liberty in the first 8 amendments Applies directly only to the federal government, not to state and local - Has been applied to states and local governments through incorporation and the Due Process Clause of the 14th Amendment Among whats protected are those provisions of the Bill of Rights that are deemed fundamental Total Incorporationist all should be fundamental and applied Selective Incorporationists only some are fundamental and only these are applied to state and local governments Supreme Court has found almost every provision of the Bill of Rights applies to states, but 4 have not 1. 3rd Amendment to not have soldiers quartered in a persons home 2. 5th Amendment Grand jury indictment in criminal cases 3. 7th Amendment jury trial in civil cases 4. 8th Amendment against excessive fines C. The Levels of Scrutiny 1. Rational Basis Test Upheld if it is rationally related to a legitimate government purpose Goal just has to be permissible for the government to do, the actual purpose does not have to be legitimate as long as there is a conceivable legitimate purpose Tremendously deferential to the government Challenger has the burden of proof 8

2. Intermediate Scrutiny Upheld if it is substantially related to an important government purpose More than legitimacy, an important government interest based on ACTUAL objective, not conceivable objection Means must be substantially related narrowly tailored Does not have to be the best way, a good way but does not have to be the least restrictive alternative Government has the burden of proof 3. Strict Scrutiny Upheld if it is necessary to achieve a compelling government purpose Governments goal has to be more than legitimate, the Court must be persuaded that it is vital, crucial, compelling Actual Purpose Means must be necessary to obtain the objective Least restrictive alternative analysis is invoked Least Restrictive Alternative Most exacting type of review government usually loses\ D. Individual Liberty 1. Procedural Due Process There are certain procedures the government must follow when taking away life, liberty or property - Notice Has the government followed adequate procedures for taking away liberty? All procedural due process issues: Has there been a deprivation of life, liberty or property? - Only time the government must provide due process significant freedom provided by the constitution or a statute - Civil commitment unless it is an emergency, there must be notice and a hearing - Property: Reasonable expectation to the receipt of a benefit - Roth v. Board of Regents year to year contract -no reasonable expectation or property interest no due process is required What procedures are required? - Matthews v. Eldridge- determining what procedures are required: 1. Importance of the interest to the individual (more important it is, the more procedural protections will be required) 2. Ability of additional procedures to reduce the risk of an erroneous deprivation (the more procedures are likely to reduce the risk that they government will engage in erroneous deprivation) 3. The governments interest Efficiency The court has much discretion Examples Welfare notice before they are cut off S.S. Disability benefits only post termination hearing


Substantive Due Process Focuses on whether the government has an adequate reason for taking away a persons life liberty or property Does the government have a sufficient substantive justification? Economic Liberties Only a rational basis test is used Only minimal protection for economic liberties Once aggressively protected: Lochner Era freedom of contract is a fundamental right strict scrutiny for interference with this right Post 1937 Lochner overruled Rational Basis Review Contract Clause Article 1 Section 10 No state shall impair the obligation of contracts Applies only to state or local interference with already existing contracts does NOT apply to the federal government Does not interfere with the regulation of future contracts State and local government may interfere with private contracts if their actions are reasonably and narrowly tailored to serve legitimate and important government interests Test is a mix of rational basis and intermediate scrutiny State and local governments may interfere with existing government contracts only if strict scrutiny is met Privacy (Strict Scrutiny Applied) Generally regarded as a fundamental right due process has traditionally been used Strict Scrutiny Fundamental Rights Right to Marry (as a fundamental right) Right to Procreate (as a fundamental right) Right to Custody of Ones Children (fundamental Right) Right to Purchase and Use Contraceptives Griswold v. Connecticut Right to an Abortion Roe v. Wade Constitutional Right to terminate their pregnancies Planned Parenthood v. Casey Strict Scrutiny is not used for abortion rights Government is never constitutionally required to pay for or provide facilities for abortion Current law:

Student disciplined by a public school notice of charges and opportunity to be heard Parental Rights before rights are terminated notice and a hearing Punitive Damages instructions to the jury and judicial review Exigent circumstances notice and hearing after


a. Prior to viability the government cannot prohibit abortion b. Prior to viability the government can regulate abortion as long as it does not place an undue burden on the right Undue Burden Test 24 hour waiting period is not an undue burden Prohibition of partial birth abortion is not an undue burden Consent unconstitutional for spouses, constitutional for minors as long as there is an alternate option (i.e. judge hearing) c. After viability the government can prohibit abortion except when necessary to protect the womans life or health Right of Parents to control the upbringing their children Right to send their children Parochial Schools Right to engage in private, consensual, adult sexual activity Lawrence v. Texas Did not identify the level of scrutiny used Right to refuse medical treatment Cruzan v. Director of Healthcare Services Did not identify the level of scrutiny Competent adults have the right to refuse medical care, even life saving medical treatment (not Scalia) State may require clear and convincing evidence before cutting off treatment State may intervene to prevent family members from terminating treatment for another Does NOT include a Right to Die Washington v. Glucksberg Right to privacy does include right to Physician Assisted Death 3. Equal Protection Asks whether the governments difference in the treatment of people are adequately justified Adequacy depends on the level of scrutiny Right to Travel Protected under equal protection and privileges and immunities clause Laws the prevent people from moving into a state must meet strict scrutiny (interstate migration) Durational residency requirement must meet strict scrutiny (specified amount of time in order to get a benefit) Chill interstate commerce and migration 11

Shapiro No fundamental right to international travel Rational Basis

Right to Vote Fundamental Right under equal protection Laws that keep some citizens from voting must meet strict scrutiny Poll taxes unconstitutional (keeps poor people from voting) Property Ownership Requirements for voting are almost always unconstitutional If the government uses race as a predominate factor in redistricting it must meet strict scrutiny

Non-Fundamental Rights Right to Education Rodriguez


EQUAL PROTECTION Every question can be broken into three steps: 1. What is the Classification (How is the government drawing a distinction among people?) 2. What is the level of Scrutiny? 3. Does the Government Action Meet the level of scrutiny? A. Constitutional Provisions Concerning Equal Protection 1. Equal Protection Clause of the 14th Amendment - Applies only to state and local government 2. Equal Protection is applied to the Federal Government by the Due Process Clause of the 5th Amendment Same protections, but for the national government Race and Natural Origins Classifications (Alienage Congressional Power Rational Basis Children, Intermediate Review) 1. Racial Classifications Strict Scrutiny How is the existence of race classification proven? 1. Exists on the face of the law Draws a distinction among people - Racial classification evidence on the face of the law Brown v. Board of Ed 2. Facially Neutral Demonstrating both Discriminatory impact and discriminatory intent Washington v. Davis Impact, but not racial intent Rational Basis 2. Racial Classifications that Benefit Minorities Strict Scrutiny Doesnt matter if it is invidious or benign Numerical Set Asides Remedy for Clearly proven past discrimination Heavy Burden Strict Scrutiny Educational Admissions/Affirmative Action May use race as one factor in admissions decisions to benefit minorities Gruller v. Bollinger compelling interest in having a diverse student body Gratz v. Bollinger Cannot add points to applicants admissions score based on race Colleges have a compelling interest in having a diverse student body May use race to enhance diversity as one factor among many cannot set aside slots for minority applicants and cant add points solely on the basis of race 3. Strict Scrutiny Must be Met if elementary or high Schools use race for Assignments/Admissions 13


Parents Involved - desegregation case strict scrutiny unconstitutional


Gender Classifications 1. Intermediate Scrutiny is Used The Court has added an additional requirement onto Intermediate Scrutiny gender discrimination will only be allowed if there is an exceedingly persuasive justification 2. How is the existence of a Gender Classifaction Proven? Exists on the face of the law Oklahoma Case Beer VMI Facially Gender Neutral Requires Both: Discriminatory Impact Discriminatory Intent 3. How should classification benefiting women be treated? Intermediate Scrutiny should be applied regardless Unconstitutional : Based on role stereotypes will not be allowed (abortion argument this can be included) Alabama Alimony case Constitutional: Designed to remedy past discrimination or differences in opportunity will be allowed SS formula that benefitted women (long history of wage discrimination) Discrimination against Non-Marital Children - Intermediate Scrutiny - Laws that provide a benefit to all marital children but no non-material children are always unconstitutional Strict Scrutiny All Other Discrimination - Rational Basis Review under Equal Protection these are non-suspect classifications Age Discrimination People with Disabilities Wealth Discrimination Economic Regulations Sexual Orientation Discrimination Romer v. Evans