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. Shays 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 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 Courts 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 dont 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 govt 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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C.

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

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b. d.

Essential functions thesis i. In order for exception to the courts 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. Judicial limitations vs Substantive Directions i. Congress could not use its jurisdiction-stripping power on a selective basis to compel the courts to each unconstitutional results in particular cases E. Limitations on Judicial Powers - Prudential a. Big Three Limitations (Standing, Ripeness, and Mootness) i. Standing (who is the right party) ii. Ripeness (When are we in the court at the right time) iii. Mootness (What does the injury still exist) F. Limitations On Judicial Power and Review Constitutional a. Federal Judicial Jurisdiction will exist if there is a federal question, Diversity jurisdiction or Cases in Controversy b. Case or Controversy Requirement i. A law suit must meet Art III, 2 definition of a case or controversy ii. There must be an actual dispute before the court, brought by a who has suffered (or about to suffer) a specific injury as a result of an identified government action G. Limitations On Judicial Power and Review Advisory Opinions a. Justiciability (a term of art) Meaning that the case is capable of being heard before the court i. The limits of Justiciability preclude the court from rendering advisory opinions b. Advisory Opinion these are opinions based on assumed or hypothetical facts that are not a part of an existing, actual controversy i. A non binding statement of the law in response to executive or legislative inquires H. Limitations On Judicial Power and Review Standing a. 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. Elements i. Injury in fact -An invasion of a legally protected interest which is concrete and particularized ii. Imminent the injury is actual or imminent rather than conjectural or hypothetical iii. Traceability - 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; iv. Redressability - as opposed to merely speculative, that injury will be redressed (corrected/relieve) by a favorable decision. c. Key Notes: i. GR: Standing prevents a litigant from raising another persons legal rights 1. Third Party Exception ii. Standing - prevents adjudication in courts of generalized grievances better suited to representative branches 1. 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

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A general grievance disqualification will apply when the harm is not only widely shared but also abstract and indefinite iii. Prudential Requirement 1. 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. 2. Zone of Interest a. Litigants are within the zone of interest of a statute if they are part of the class it was design to protect 3. Generally, plaintiff can only assert plaintiffs rights a. Limited exceptions for third party standing 4. No suits by taxpayers or citizens for generalized grievances a. Very narrow exception for expenditures in religion clause cases 5. If suing a federal agency, claim must be within the zone of interests protected by the statute or regulation in question. 6. A federal taxpayer status alone will not give standing to challenge a spending measure by congress d. Allen v Wright (1984 Tax exemptions for schools practicing racial discrimination a stigmatic injury) They lacked direct personal injury i. Rule: A must allege personal injury fairly traceable to the defendants allegedly unlawful conduct and likely to be redressed by the requested relief ii. 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. 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. 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. US v Students Challenging Regulatory Agency Procedures (SCRAPS) (1973 5 students interested in a clean environment railroad freight rates imposed by ICC) i. 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. Friends of earth v Laidlaw Environmental service (2000 Holder of a CWA discharge permit - was not in compliance with the rule) i. Standing existed because the outgoing pollutant discharges directly affect the citizens-suit plaintiffs recreational, athletic and economic interest d. Heckler v Mathews (1988 a statute that gave larger social security benefits to women than to men equal protection) i. When right invoked is that of equal treatment, appropriate remedy is mandate of equal treatment, a result that can be accomplished by withdrawal or benefits from favored class as well as by extension of benefits to excluded class e. Regents of the University of Cali v Bakke (white student said he didnt get into school because of affirmative action) i. Standing question arises because it was not clear if the affirmative action program was the reason he didnt get into school

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

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. GR: federal taxpayers do not have standing to challenge expenditures of money by congress ii. 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 person asking the court to hold a federal act unconstitutional must be able to show 1. That the statute is invalid; and 2. Must show injury in fact c. Flast v Cohen (1968 - Tax payer has standing to challenged federal expenditures for parochial schools under the religion clause of the first amendment) i. Holding: 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. 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. The respondents lacked standing as taxpayers or citizens to challenge, as violative of the establishment clause failed FLAST factors K. Legislative Standing a. 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. An abstract institutional injury is not sufficient concrete to meet the requirement of an injury in fact b. 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. The court said they had standing as the votes had been overridden by the Lt. gov when they were sufficient to prevent ratification 1. Here their votes were not given full effect c. Rains v Byrd (1997 the supermajority upheld the act) i. The court held that they member of congress act standing to challenge the constitutionality of the line item veto act 1. The legislators votes were given full effect and they simply lost the vote L. Standing to Sue in State Court a. The court has consistently held that standing to sue in state court is governed by state law and not article III b. 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. ASARCO v Kadis (1989 - ) i. A state taxpayer would have standing in federal court to challenge a state legislatures expenditure of money to establish religion (under Flast) M. Limitation of Judicial Power Timing of Adjudication - Mootness a. Mootness i. An actual controversy/injury - must exist at all states of the appellate or certiorari review and not simply at the date the action is initiated 1. Exceptions 9

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

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i. Main Powers Art 1, 8 1. Lay and collect taxes; 2. To borrow money; 3. Power to spend for the general welfare; 4. To regulate commerce ; a. Among the states, with foreign nations and Indian tribes b. If congress want to attempt to regulate the general welfare it is typically through the Commerce Clause (Art 1, 8, Cl 3) 5. Power to regulate immigration and naturalization; 6. Power to coin money; 7. Power to establish a postal service; 8. Power to set up a system of copyright; 9. Power to set up federal courts; 10. To declare and conduct a war; 11. Power to maintain and raise armies; 12. Power to regulate and dispose of federal property; 13. Power to acquire private proper for public use; and 14. Power to pass regulations for the District of Columbia e. Article 1 i. Sec. 1: Vesting of federal legislative powers ii. Sec. 8: Enumerated federal legislative powers (18 clauses they enumerate most powers) iii. Sec. 9: Federal Limitations iv. Sect. 10: State Limitations B. Necessary and Proper Clause (NPC) a. Key Notes i. Art. 1, 8, Cl. 3 Congress has the power to make all laws which shall be necessary and proper for carrying out any constitutional power for itself, any other branch or officer of the federal government ii. Under this clause congress has the power to make law not only for itself but for the president and the courts - gives congress an implied power iii. NPC must be used with another constitutional provision b. McCulloch v Maryland (1891 Congress wants to open a bank and the state wants to tax it) i. Proper: If the end be legitimate, and within the scope of the constitution, all the means which are appropriate, which are plainly adapted that end, and which are not prohibited, may constitutionally be employed to carry it into effect ii. Necessary: means convenient, useful or essential to support congress/president/JD branch c. US v Thorton (1995 term limits) i. 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. 1. The state changing term limits for the state reps are allowed ii. 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. US v Comstock (keeping sexually predators in jail longer than their sentence) i. Civil detention statue was deemed constitutional under the necessary and proper clause e. Kansas v Colorado (1907 we want to irrigate and reclaim arid land) 11

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

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iii. FDR New Deal Programs for economic recovery iv. The Lochner era ended after President Roosevelt, fed up with the Supreme Court invalidating New Deal policies, threatened to "pack" the court with new appointees. b. Hammer v Dagenhart (1918 Prevent child labor with commerce clause, not) i. 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. Carter v Carter Coal Co (1936 - manufacture not complying with the minimum wage) i. 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 of the employed mine workers 1. Reason Production is purely a local (state) activity Commerce Power Expansions After 1936 a. NLRB v Jones and Laughlin Steel (1937 - 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. US v Darby (1941 You cant regulate wages it has nothing to do with interstate commerceyes we can it has a substantial effect on ICC overruled Dagenhart) i. Rule: the prohibition of the shipment of interstate goods produced under the forbidden substandard labor conditions is within the constitutional authority of congress 1. The act is directed at the suppression of unfair competition in interstate commerce a valid purpose. Therefore the act is constitutional c. After Interstate Commerce Ends i. US v Sullivan (The food, drug, and cosmetic act pharmacist does not label a bottle of pills) 1. 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. Scarborough v US (it is a crime for convicted criminals to possess a fire arm) 1. Held a federal statute making it crime for convicted felon to possess in commerce or affecting commerce any firearm, proof that they possessed a firearm previously traveled at some time in interstate commerce was sufficient to satisfy required nexus between possession and commerce. d. Power Over Local Activities Aggregation Theory 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)- Aggregation theroy 1. Court reasoned that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating its purpose to stimulate trade therein at increased prices. a. This one farmers act are trivial by themselves but if a lot of farmers are doing this it has an effect (aggregation) e. 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)

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

14

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

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

J.

iii. Reasonably Related - Conditions may be illegitimate if it us unrelated purpose of the federal grant iv. Other constitutional provisions may bar the conditional spending 1. 10A, Establishment clause c. US v Butler (1936 Agricultural Adjustment Act dont make so much wheat Wicker overruled this) i. Rule: Conditional spending cannot be to coercive with the states as it was here ii. Invalidated the act on 10A issues (last case where 10A was used to invalidate a spending measure) d. Steward v Davis (a national tax on all employers to generate the national unemployment fund) i. Issue: did the law coerce state government to adopt unemployment compensation laws in violation of the 10A? No it was optional e. Helvering v Davis (1937 Social Security Program is valid) - The discretion belongs to congress, unless the choice is clearly wrong, a display of arbitrary power, and not an exercise of judgment. - definition of the general welfare 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. Only the power that is national can serve the interest of all f. South Dakota v Dole (our drinking age is 19 who are you to say otherwise- Congress federal highway grant if you raise your drinking age) i. Incident to spending clause, Congress may attach conditions to receipt of federal funds, 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. Treaties -Art II, 2 - grants the president the power to make treaties with foreign nations, provided that 2/3 of the senators present concur i. These treaties become the supreme law of the land ii. The 10A (State police power) is not a limit on the treaty b. Types of Treaties i. Self executing treaty - comprehensive the treaty contains within it all of the necessary elements to execute it completely 1. Has the force of law as soon as they are ratified ii. 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. Basically just an agreement to agree between nations 2. Needs to be implemented by legislative authority (bicameralism) c. Perez v Brownell (1958 born in the US, lived and voted in Mexico) i. 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. Missouri v Holland (1920 - US and Canada save the migrating birds) i. A treaty may be a source of legislative power - Congress may implement an US treaty creating regulations that would be unconstitutional if the act stood alone ii. The important national interest here can be protected only national action in concert with another nation

17

e.

f.

iii. 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. Rule: A treaty/Executive agreement obligations cannot override constitutional requirements ii. 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. These are agreements between the president and the chief executive of another country ii. Senate ratification of an executive agreement are not necessary iii. These agreements are of lower order than federal statutes 1. If there is a conflict between the two federal statute will preempt

Intergovernmental Immunities A. Intergovernmental Immunities a. Key Points i. Text: 10A - The powers not delegated to the US by the constitution, nor prohibited by it to the states, are persevered to the States respectively or to the people. 1. Co-sovereignty and State sovereignty ii. Terminology 10A and state sovereignty are strongly related 1. DO NOT confuse with sovereign immunity 11A b. Federal Immunity from State Taxes i. McCulloch v Maryland (Maryland wants to tax the federal bank) 1. Rule: The federal government is supreme under the constitution and its instrumentalities cannot be taxed by the states 2. A state which represents only a part of the people of the nation cannot act to control the government of the whole country 3. The power to tax is the power to destroy and control ii. Dobbson v Commissioners 1. A state has no power to impose a tax on the pay of a federal officer c. State Immunity from Federal Tax i. GR: A federal tax on all states would be valid as long as it does not 1. Discriminate against the states 2. Does not unduly interfere with or substantially burden traditional state functions and 3. Does not apply to revenue uniquely capable of being earned only by the state ii. GR: if a state began to undertake new function resembling business enterprises more than traditional sovereign activity (i.e., hospitals) immunity is restricted iii. Collect v Day (1871- our judge is necessary and proper to our states function so you cant tax him) 1. Rule: Congress cannot, under the constitutional authority to lay and collect taxes, impose a tax upon the salary of a judicial officer of a state. iv. NY v US (NY was selling water to its employees) 1. 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

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

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

ii.

E.

F.

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

1.

i. If the US is involved the constitution is relevant ii. 3 step enemy combatant process 1. Determination of enemy combatant status this determination is made by the president a. Due process can only be suspended for a small time 2. Where they provided adequate due process b. Joint resolution authorizing the use of military force i. In response to 9/11 congress passed a joint resolution titled Authorization for Use of Military Force (AUMF) ii. This gives the president broad authority to use force against nations, organization or persons the president deems aided in the terrorist attacks c. Judicial Review of the Detentions of Detainees in the war on Terrorism i. The court has jurisdiction under Federal habeas corpus statutes to review the detention of persons, whether citizens or foreign nationals , detained by the government in the war on terrorism d. Know Hamdi, Rasul , and Boumedine G. US Citizen Detained as an Enemy Combatant - War Powers a. Due Process Requirements (US citizen it entitled to these) i. Notice meaningful and timely notice of the factual basis for his status as enemy combatant ii. Natural Judicial Maker Fair opportunity to rebut the assertion iii. Counsel Right to counsel 1. Process might be tailored for circumstances, like admission of hearsay and presumption in favor of government b. Hamdi v Rumsfield (2004 Detention of Citizen Enemy combatants - 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. Held: that a citizen-detainee seeking to challenge enemy combatant status must receive notice of factual basis for classification, and fair opportunity to rebut facts before a neutral decision maker these are the essential requirements of procedural due process. H. Alien Detainees Rights War Powers a. GR: Alien detainees imprisoned at GB have a right to challenge their dentition in US courts b. Rasul v Bush (2004 Captured in Afghanistan and held in Guantanamo Bay) i. Alien detainees imprisoned at Guantanamo Bay have a right to challenge their detention in US Courts ii. Guantanamo Bay was under the exclusive control of the US as such Constitution applies c. Hamdan v Rumsfeld (2006) i. This case involved restrictions on military commissions used to try enemy combatants ii. Rule: Military commissions used to try enemy combatants at Guantanamo Bay must comply with federal law and principles of international law d. Suspension clause i. 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. Applied to GB as US had complete control over the military base

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I.

J.

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

e.

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

c.

d.

e.

f.

construed to limit President's power to removal for causes thus enumerated, is a valid restriction on authority of executive. ii. Congress has authority to require quasi legislative and quasi judicial agencies to discharge their duties independently of executive control, 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. 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. 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 latters will 1. Does this create a headless fourth branch (not subject to congress, president or the judicial branch) Buckley v Valeo (1976 congress retained the power to appoint their members) i. 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. congress may vest the appointment of inferior officers in the president, a court of law or the head of an executive department but not in itself Bowsher v Synar (1985) i. Issue: whether congress can delegate executive functions to a government officer who is removable by congress 1. No. The comptroller general was performing an executive function by engaging in the budget cutting process 2. The power to remove is the power to control: congress may not delegate executive function to someone whom it can fire (Legislative Veto) 3. The constitution gives congress a role in appointment of executive officers, it does not give them an active role in supervising that officer Morrison v Olson (1988 creation of independent counsel) i. Issues in Morrison include: removal restrictions on the President, the appointment clause and general separation of power analysis 1. Removal restriction by Congress will be valid unless they unduly interfere with an essential attribute of the presidency 2. Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments ii. Facts: In hiring independent counsel, the AG conducts a preliminary investigation and then reports to a special division of the Court of Appeals. Upon the special divisions approval they appoint the IC. iii. 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. This act does not violate the separation of powers doctrine; 1. Independent Counsel is an inferior officer under the appointment clause, with limited jurisdiction and lakes policymaking and significant; administrative authority

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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. 3. This is a functionalistic approach g. Free Enterprise Fund v Public Company Accounting (2010 Securities and exchange board hires the head of an agency) i. the President the general administrative control of those executing the laws, and it is his responsibility to take care that the laws be faithfully executed; the President therefore must have some power of removing those for whom he can not continue to be responsible h. Mistretta v US (1989 Pres has appointed federal judges to a committee on sentence guidelines) i. Rule: It does not violate the constitution for federal judges to sit on a commission which develops sentencing guidelines for federal courts L. Key Notes a. Myers, Buckley, Chadha, Bowsher and Metropolitan Airport separation of power was violated by congress seeking to reserve an executive power for itself b. Humphrey, Wiener, Morrison and Mistretta These cases all concern congress lessening the presidents power without reserving a corresponding power for itself M. Separation of Powers Privileges and Immunity a. Executive Privilege means that the president has a presumptive right to refuse to disclose materials, document, or communications that are generated during that Presidents tenure in office i. 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. Not absolute, but qualified; privilege may have to yield to other government interests. 2. Presidents may be impeached for treason, bribery or other high crimes or misdemeanors ii. Why Is this Privilege Necessary 1. The president needs to be able to conduct the affairs of office free from excessive public scrutiny iii. 3 Kinds of Invocations of the Privilege 1. 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 governments 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. Generic Privilege for internal deliberations attaches to intergovernmental document reflection advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated b. US v Nixon (1974) i. Held: That Nixons 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.

c.

d.

e.

f.

g.

h.

i.

j.

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. i. The is not constitutional provision giving this immunity, the court has recognized it as a necessary incident of the powers of the President ii. Absolute Immunity 1. The president has absolute immunity from civil liability for his/her official acts, as long as, the president was acting within the outer perimeter of the duties of the office iii. Nixion v Fitzgerald (1982 Pres fired Fitz after he testified against him in court) Civil Damages for Events Prior to Taking the office 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. 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. To determine if qualified immunity applies, 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. Note: If a presidential aid were entrusted with discretionary authority in a highly sensitive national security/foreign affairs position, that aid might be entitled to absolute immunity to protect the performance of functions vital to our national interest. Legislative Immunity i. The speech and debate clause Art 1, 6, Cl 1 - They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. ii. 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. 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. 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. 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. 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

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

Where federal law and where the state law is an obstacle to the accomplishment and execution of Congress's full purposes and objectives a. What is a sufficient obstacle is determined by examining the federal statute and identifying its purpose and intended effects. e. Concurrent Doctrine i. When Congresss power is dormant the states retain significant concurrent regulatory powers 1. 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. Wyoming v Oklahoma (Commerce clause prohibits economic protectionism) a. Rule: A State statute that clearly discriminates against interstate commerce will be struck down under commerce clause, unless discrimination is demonstrably justified by valid factor unrelated to economic protectionism b. Puts out of state business in a competitive disadvantage compared to in state business 3. State regulations only incidentally restricts the flow of interstate commerce such as by regulating containers in which an item of commerce can be marketed, regardless of where it was produced are valid and will be up held ii. Per Say Rule losses 100% of the time 1. State regulations that purposely discriminate against interstate commerce are invalid a. Does it treat for out of state business differently for economic protectionism reasons or for hording their natural resources iii. Strict Scrutiny Losses 90% of the time 1. 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. Main v Taylor only case where the state won for this reasons b. Are there alternative available that dont substantially interfere with interstate commerce iv. Pike Balancing test State has a 50/50 chance of winning 1. Evenhanded treatment of out of state and in-state a. Is there a legitimate (valid) state interest b. Are the impacts on interstate commerce incidental (minor) c. Then balance the two if the burden on interstate trade excessive in relation to local benefits B. State Regulation when Congress Power is Dormant a. Key Notes: i. Dormant Commerce Clause Doctrine 1. Applies when a state, in the absence of any preempting federal action, 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. Two ways a state may interfere with the free flow of Commerce a. Discriminate against interstate commerce 29

2.

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

E.

F.

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. Discrimination By Political Subdivision of a State: Less Drastic Means i. 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. Dean Milk v Madison (1951 all milk sold here must be pasteurized w/in five miles of Madison) i. 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. Rule: this type of law discriminated against interstate commerce even though some people within the limit were also at a disadvantage iii. Additionally: The law was unconstitutional because there were less drastic means available to achieve its goal of ensuring healthy milk iv. 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. 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. Held: OH discriminated in violation of the CC when it denied the tax credit for ethanol produced in IN, which granted a direct subsidy to IN ethanol producers but furnished no reciprocal tax credit f. West Lynn Creamery Inc v Healy (1994 Mass combines a facially non-discriminating tax with a subsidy to in state farmers) i. 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. 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. This law benefited the local dairy industry at the expense of out of state interest 1. The disbursement from the fund amounted to a subsidy of instate diary interest State Power to Regulate Regulating Outgoing Trade a. Pike v. Bruce Church, Inc. (1970) i. State interest did not outweigh burden on interstate commerce 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. iii. Even if there is a legitimate local interest, this sort of burden has been declared to be virtually per se illegal. State Power to Regulate Dormant Commerce Clause- Protect the Environment a. Key Notes i. The court has not allowed environmental concerns to override the Commerce Clause ii. Preserving environmental resources for instate use (hording resources) b. Philadelphia v NJ (1978 PA wants to dump our garbage in NJ) i. Rule: A state may not prohibit importation of environmentally destructive substances solely because of their source of origin 31

c.

d.

e.

f.

g.

h.

Court said quarantine wont work as quarantine laws involve deal with things that have to be destroyed immediately such as mad cow. ii. This law is facially discriminatory and is per se volatile of the Commerce Clause iii. Multiple Burden what happens if other states do this? Main v Taylor (main prohibited importation of bait fish from other states) i. The ban was a clear discrimination against out of state baitfish, but for a legitimate purpose protecting state aquatic ecology ii. Strict Scrutiny Test 1. 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. Alternative Regulation Measures less discriminatory means of protection against these threats are unavailable iii. Typically a 100% ban is not allowed in interstate commerce Minnesota v Clover (1981 Only carton milk allowed here not plastic) i. 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. 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, for the benefit of a preferred processing facility 1. This flow control ordinance squelches competition in the wasteprocessions service leaving no room for investment from outside iii. Court applied the per se rule for local economic protectionism Hughes v Oklahoma (1979 You cant sell our minnows out of state) i. 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. OK was regulating how out of state sale of minnows but not how they are being sold in state iii. Test Applied to State regulation of Wild Animals 1. Whether the challenged statute regulates evenhandedly with only incidental effects on interstate commerce? 2. Whether the statute serves a legitimate local purpose? 3. Whether alternative means can promote this local purpose as well without discriminating against commerce? (biggest issue with this case) Reciprocity Requirements i. Reciprocity Requirements violate the dormant commerce clause because they create too great a risk of multiple burdens on interstate commerce 1. 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.

i. Groundwater is an article of commerce and therefore subject to congressional regulations. ii. 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. G. State Power to Regulation Dormant Commerce Clause - State Regulation of Tender Offers a. Tender an unconditional offer to perform, together with manifested ability to do so, and the production of the subject matter of tender. b. 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. 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. 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. 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. Extraterritorial Regulation H. Dormant Commerce Clause State Regulation of Transportation a. For a State transportation regulatory statute to be constitutional i. Uniform National regulation is not required ii. Non Discrimination iii. Balance of interest favors the state 1. Public Safety and Welfare is the states interest in public safety a welfare is the predominant purpose of the state law 2. Controlling competition A states interest in controlling competition is not a valid reason for substantially impeding on interstate commerce b. Southern Pacific Co v Arizona (1945 - AZ limits the length of freight train cars to 70 or 14 passenger cars) i. 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. The states cannot impede substantially the free flow of commerce from state to state, or regulate those phases of national commerce which, because of need of national uniformity, demand that their regulation, if any, be prescribed by a single authority. c. Kassel v Consolidated Freight (1981 IA doesnt want 65 trailer trucks but the state around it are fine with 65 trucks ) Pike Test i. 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. IA 55 truck limit is out of step with all other Midwest states which allow 65 trucks, thus the rule substantially burdens the interstate flow of goods I. State Power to Regulation State as a Market Participant 33
Sc1d9ab169c1e1

J.

Market participant - 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. When a state acts as a market participant whether then a regulator, it may discriminate against out-of-staters for any reason, including: Local economic advantage and be immune from a dormant clause analysis ii. 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. Limits 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. When state acts as a market participant and not as a regulator, dormant Commerce Clause doctrine does not apply i. State may favor in-state interests over out-of-state interests ii. Critical issues 1. Regulator versus market participant 2. What market is the state participating in 3. Other constitutional limitations still apply (eg. equal protection, P&I clause). iii. Here the state is spending their own money as a buyer or purchaser d. 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. A state may discriminate against out-of-staters in the sale of cement by a stateowned cement company ii. The commerce clause responds principally to state taxes and regulatory measures impeding free private trade in the national market place iii. Cement is a complex manufacturing process and not a natural resource iv. 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. Hughes v Alexander Scrap (1976 MD scrap program designed to remove abandoned autos form the state roadways and junkyards) i. Since the state had entered the business of auto salvage it could require more stringent requirements for out of state cars 1. This discriminates is allowed - When state acts not as regulator but as market participant, state may favor its own citizens 2. State was a market participant as they are using their spending power (proprietary) , not its tax power as a regulator 3. State had essentially entered the market to bid for abandoned vehicles ii. Nothing inthe Commerce Clause prohibits a statefrom participating in the market andfavor[ing] its own citizens over others. f. South Central Timber Dev. 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. AK was trying to control a market transaction that occurred subsequent to the initial sale of timber by the state 1. The state was now trying to regulate shipping and processing of timber a. By requiring that it be process in state before shipping Privileges and Immunities Clause Art. 4, 2 a. Key Notes i. GR the privileges and immunities clause of Art. 4 2 prohibits a state from denying to out-of-staters privileges (basic rights) that it grants to its own citizens 34

a.

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

d.

e.

iv. Applying Intermediate Scrutiny Test (SLRP) 1. Has the law substantially impaired an obligation of an existing K? 2. Does the government have a significant and legitimate reason for the impairment? 3. Are the means are appropriately tailored to achieving its goal? a. Is the law bases on reasonable conditions and b. Is it appropriate for the public purpose underling the law Allied v Spannaus i. Rule: A state law adding obligation to a K is subject to a K analysis ii. 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, as the company has relied on the original plan; and 2. The legislation here had narrow focus; not intended to protect a broad social interest (only a small group of people) Blaisdell Factors i. Private-Party Contracts: permitted when vital public interests would otherwise suffer; requires balancing of private rights and public interests factors: 1. Protects a basic societal interests NOT special interest legislation 2. Appropriately tailored to the societal interest 3. Reasonable conditions are imposed 4. Limited to duration of the emergency

Federalism
A. Federalism - Abstention Doctrine a. Main concept: Federal courts will abstain from exercising jurisdiction, for both prudential and constitutional reasons i. Pullman abstention: federal courts abstain from exercising jurisdiction where resolution of a constitutional issue turns on an unsettled question of state law; 1. Must start in the federal court and it is remanded back to the state court just to answer a particular issue ii. Younger abstention: (Adequate and independent State Doctrine) federal courts abstain from issuing injunctive relief in regard to pending state court criminal proceedings. 1. Must start in the state court and attempt to jump out and into federal court 2. seeks to force stay of state proceedings for federal intervention, and generally the federal court refuses to intervene out of respect to the state courts our Federalism. b. RR of TX v Pullman (Pullman porters are black - TX want to be in charge staffing any porters going though TX i. 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. Here if the TX Supreme court says that the railroad commission does have the authority to issue the discrimination order then the must go back thought the DC

36

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

f.

g.

h.

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

the remedy imposed by Congress must be congruent and proportional to the targeted violation. ii. Holding: States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions towards such individuals are rational 1. if special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause iii. 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. Courts uses a Rational Basis Scrutiny Test 1. State regulation regarding the disabled is only subject to rational basis scrutiny j. 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- 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. Here the court said congress had 5 power to abrogate state immunity - therefore private damages as a remedy allowed 1. Here the states were participating in gender based discrimination in the workplace k. Test for Prophylactic Legislation i. 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. 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. Florida Prepaid Education Board v College Savings Bank (1999 Patent Remedy Act - ) i. 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. Here the court said that in order for properly prophylactic 5 legislation there must be widespread and persisting deprivation of constitutional rights m. College Savings Bank v Florida Prepaid Education Board (1999 -) i. Holding: The states sovereign immunity was neither validly abrogated by the Trademark Remedy Clarification Act (TRCA), nor voluntarily waived by the State's activities in interstate commerce n. Tennessee v Lane (2004 ADA Title II access to courts by use of ramps) i. Holding - Title II of the ADA, as applied to cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress' enforcement power under the Fourteenth Amendment o. Hans v Lousiana (1890 -) i. Each state is a sovereign entity in the US federal system ii. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent 39

2.

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

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c.

d.

e.

f.

g.

i. The court held invalid a state action structuring the states 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. Marsh v Alabama (1946 Jehovah witness on the sidewalk with literature in a town owned by a corporation) 1. Ownership does not always mean absolute dominion a. The more a owner opens his property, to his advantage, for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it 2. Holding: Because the facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation Shopping Centers i. Hudgens v NLRB (1976-union member want to picket in front of the store) 1. Holding: no state action is involved when the owner of a privately owned shopping center excludes speakers from the shopping center 2. 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 states constitutional obligation Public Parks i. Evans v Newton (1966 land devised to the state with a condition subsequent for whites only) 1. Here there is a state action as the government official act as trusties of a racial discriminatory private will a. Once the state had control of the land it served a governmental function 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. 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. Is electricity a substantive right Statutory Bargaining Agents i. Steel v Louisville (1944 Union reps bargained aggressively for white member and not so for black members) 1. While the unions are a private organization, its power to represent and bind all member of a class is derives solely from Congress a. Performing a government function 2. Here through the Railroad Act the union was given statutory power from congress Private Function i. Griffin v Maryland (Private amusement park hired a state deputy sheriff to keep its park segregated) 1. If an individual is possessed of state authority and purports to act under that authority, his action is state action, 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. 41

E.

F.

Business Regulation i. Jackson v Metropolitan Edison (1974 light were turned off for failure to pay bill) 1. A public utility, even if granted monopoly status by a state, is not a state actor 2. 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. Here neither questions are affirmative - Performing a government function (no) or Is sufficiently involved with or encouraged by the state so as to be held to the states constitutional obligation (no) 4. Here the court said that supplying electricity was not traditionally the exclusive prerogative of the state, so no state action could be imposed to the electric company i. Corporations i. A corporation that is crated and controlled by the government is subject to constitutional restrictions 1. 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, and gives the president the power to appoint a majority of its board of directors State Action State Involvement or Encouragement a. Where state action aids in private discrimination that state action is deemed illegal i. This is used exclusively where a white homeowner breaches a restrictive covenant with other white homeowners not to sell to black buyers 1. Here it is the state court which is directly preventing the black buyer from moving into the house ii. 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. 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. 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. So once a private action gets in to court they may then amount to state action iv. The injury is aggravated in a unique way by the incidents of governmental authority c. Borrows v Jackson (1953 homeowner seeking money damages from a co covenantor for sell their house to a black person) 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. 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 - State constitutional authorization of racial discrimination a. Reitman v Mulkey (1967 - 26 of Cali Constitution allows private property owners to discriminate)

h.

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i. State action exist when a private party relying on a state constitutional provision, refuses to rent an apartment because of the race of the lessee ii. 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. The state has significantly involved itself with invidious discrimination b. 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. Here there is nothing approaching the symbiotic relationship between the state and the private party to create a state action 1. Both parties benefit from each other iii. Here the lodge was not serving a government function nor was it sufficiently encourage or entwined with the state c. SUBSIDIES i. Early cases found that state subsidies resulted in state action: ii. Norwood v. Harrison (1973) (state action where government gave textbooks to private schools that discriminated on account of race) iii. Gilmore v. Montgomery (1974) (state action where city gave discriminatory private schools exclusive access to citys parks and other recreational facilities). G. State Action Recent Developments a. Main concept: Private conduct that is excessively entangled with the state the state has affirmatively authorized, encouraged, or facilitated the conduct may rise to the level of state action b. Rendell-Baker v Kohn (1982 discharge school employees sued under 1983 the school was publicly funded, regulated, students were referred by the state publicly funded school) i. Holding: Actions by a private schools which is used by the state to fulfill a legislative requirement do not qualify as state actions ii. The school was regulated by the govt but its decisions to discharge is not compelled or influenced by state regulation iii. Service to the public does not render private activity a state action nor does a symbiotic relationship as the govt does not profit iv. Factors state subsidies given, amount of regulation (how much of what was done is by private discretion), Is the private company performing a public function and was there a symbiotic relationship c. Corporate entities i. San Francisco Arts & Athletics, Inc v. U.S. Olympic Comm. (1987) 1. USOC not part of government even though chartered by Congress, partially federally funded, and regulated by federal law ii. Lebron v. National Railroad Passenger Corp. (1995) 1. NRPC (Amtrak) was part of government because it was created by federal law, had a board appointed by President, and was substantially federally funded. 2. 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

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f.

g.

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i. 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 Bs possession) i. Holding: Just because an action is permitted by state law does not make private actions those of the state 1. Mere acquiescence by the state is insufficient 2. The activity sought to be characterized as state action must be an exclusive govt function, this was simply a self help remedy one means among many to resolve a dispute ii. 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. Holding: even if the a private association, it was heavily intertwined with the public school system 1. Its members were allowed to participate in the state retirement system, 2. State board of education member serves as members of its governing body, and 3. There could be no association but for the participation of public official Peremptory challenges in jury selection i. Batson v. Kentucky (1986) held that equal protection prohibited state prosecutor from using peremptories to racially discriminate ii. Edmonson v. Leesville Concrete Co. (1991) applied Lugar analysis to extend Batson to civil cases 1. State and federal laws authorize peremptories 2. 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. A states failure to protect an individual from violence by a private party does not constitute a violation of the due process clause. 1. The govt has not obligation to protect a person from harm by another person unless that person is in state custody/control

Due Process
A. Procedural Due Process a. Three main requirements of due process i. Impartial decision maker, ii. Notice, and iii. A hearing or opportunity to respond 1. Right to counsel furnished in criminal cases but not in others b. Main concept: the government may lawfully deprive a person of life, liberty or property only if it follows reasonable procedures to minimize the risk of an erroneous or unfair deprivation c. Three questions (from Shafer) i. Is there a life liberty or property interest involved? If no due process not an issue. ii. Has there been or is there about to be a deprivation? iii. What process is due? 44

d.

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

i. j.

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Emergency situation where there is an urgent national security issue or a extreme public policy reason deprivation can be immediate iii. Scope (how much) 1. This is a sliding scale 2. The greater the harm the more Due Process is required 3. Goldberg Gray Panthers Goss Key Notes: i. Due process has a sliding scale Public Employment i. 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. Perry (had an implied tenure) 1. He had been working there for over 10 years and typically this entitles you to a tenure it is almost automatic. Procedural due process was necessary as he has an property interest in his job Education as Property i. Goss (1975 Student given a temporary disciplinary suspension 10 days or less) 1. 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. Just needed basic notice and a right to respond (least amount of due process) ii. Board of Curators v Horowitz (1978 med student dismissed for academic reasons) 1. Rule: no hearing is required before a student is dismissed for academic reasons Govt Benefits a Property i. GR: Govt 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 v Kelly (1970 welfare recipients are entitled to pre-termination hearing) a. 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.

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