Con Law Condensed Overview

Federal Power: The constitution gives the gov enumerated powers and limits the exercise of the gov power with individual rights and provisions found in the constitution, i.e. the bill of rights Limits on State Power There are express and implied limits on state power found in the constitution 1. Express limitations: o o o o 2. o Clauses in Article I Supremacy clause of Article VI Privileges and Immunities clause of Article IV 13th, 14th, and 15th Amendments Dormant Commerce Clause Where the fed gov regulates interstate commerce, whether occupied or not, the state cannot regulate interstate commerce Methods of Constitutional Interpretation

Implied limitations:

1. Textual: meaning is derived from the present sense of the words in the constitution o issues open-ended words like equal protection 2. Originalist: meaning is derived from the original intentions of the draftsmen, if known, and the subsequent
historical sense of the provision in question

3. Structural: meaning is derived from the relationships among governments, and between governments and
people, created by the constitution

4. Doctrinal: meaning is derived from past judicial precedents concerning the constitution, i.e. the common
law method of reasoning from prior decisions which are then treated as binding under stare decisis

5. Prudential: meaning is derived from practical realities

o 6. common in separation of powers cases involving the proper role of the President or Congress with respect to foreign affairs Other things to look at: o o o o o Text of the constitution, the actual words and language History of the portion of the text in question Structure of the text of the constitution Core purposes or policies which underlie the provision of the constitution in question Judicial precedent

SUPREME COURT AUTHORITY AND ROLE

Art. 3 1 the judicial power shall be vested in one supreme court and such inferior courts as Congress may establish

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Congress has plenary power to establish lower federal courts o o fed diversity jdn not constitutionally mandated, so Congress could get rid of it fed question is constitutionally mandated, it stays

Supreme Court Authority

Original jdn cases/controversies involving ambassadors, public ministers/consuls, and where a State is a party Note: Congress may not restrict this area Appellate jdn All other cases and controversies Note: Congress may broadly regulate via the Exceptions Clause Lower federal courts have concurrent jdn w/Supreme ct except where 2 or more Sts are a party

1. POWER OF JUDICIAL REVIEW

Marbury v. Madison Textual interpretation

S.Ct. can interpret the Constitution and its interpretation will be binding on the other branches of gov. Ct can review actions of the other branches (executive and legislative conduct, but not political questions) S Ct can invalidate congressional acts There is no actual support in the Constitution for the doctrine of judicial review - implied

2. SUPREME CT AUTHORITY TO REVIEW ST CT JUDGMENTS

Martin v. Hunters Lessee The judicial power extends to all people and States S Ct can review St jdmts involving issues of fed law Originalist interpretation for uniformity o Amendment process designed to overturn S. Ct rulings

Adequate State Grounds only applies to Supreme Ct. must have a final judgment from highest St court

S. Ct. will not hear the case if there is an adequate and independent St ground upon which the case St Ct must make it plain and clear that there is a clear, independent State ground for its decision to avoid Supreme Ct review

was decided

3. JUDICIAL EXCLUSIVITY IN CONSTITUTIONAL INTERPRETATION

Cooper v. Aaron S. Cts interpretation of the Constitution is binding on the Sts via 14th Amend POLITICAL RESTRAINTS ON THE SUPREME CT

1. Judicial selection: the nomination and confirmation process President nominates Justices to S. Ct
w/advice & consent of Senate. Art. II 2, cl. 2

2. Impeachment: for conviction of treason/bribery/other high crimes and misdemeanors Art. II 4

3. Court-packing: Congress sets the size and budget for the Ct.

4. Court-stripping: Congress has power over S. Cts appellate jdn (not their original jdn). Art. III 2. Ex
Parte McCardle: Congress can take away the S. Cts appellate jdn in an area of cases (must vest the jdn in another Art. III ct)

Con Law Condensed 4. THE CASE OR CONTROVERSY REQUIREMENTS An actual dispute involving legal
relations of adverse parties for which the judiciary can provide relief Advisory Opinions - Judges wont give the Executive Branch advice b/c it can only hear Cases/Controversies. NO advisory opinions!!! Separation of powers Case/Controversy Requirement (1) Standing (2) Timely (ripeness/mootness) (3) must arise neither too late or too soon for judicial resolution (mootness/ripeness)

Standing P in Fed Ct = trigger, must show a concrete personal stake in the outcome

Constitutional standard Lujan: injury in fact economic/aesthetic/environmental actual/imminent causation Harm alleged is traceable to conduct complained of redressability relief sought will eliminate harm alleged (partial maybe ok)

o organizational standing same requirements, limited by prudence of Ct need standing of member(s)

Prudential limitations Limits the Ct sets on its own accord - standing denied even when constitutional standard is met.

No 3d party standing, unless Craig v. Boren i. Close relationship (nexus) with P;

ii. Some injury; and

iii. Special need to adjudicate No abstract/generalized grievances

i. Exception: Flast v. Cohen Fed taxpayer can challenge a federal taxing/spending

measure (not a gov expenditure incidental to some other power) made pursuant to an express congressional mandate and appropriation under the Spending Clause on Establishment Clause grounds narrow holding St taxpayers have standing if measurable economic expenditure challenge, i.e. bussing kids to Ct wont decide a constitutional issue before its necessary to do so; preferable to dispose of school, but not school prayer the case on other grounds

Ripeness need a genuine immediate threat of harm: balance courts reason not to hear the cause

w/Ps reasons for wanting to adjudicate; No anticipatory relief Mootness case is moot unless an actual controversy exists al all stages of review; exception: If

injury is capable of repetition though evading review, i.e. Roe v. Wade

Political Questions nonjusticiable

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Baker v. Carr Separation of powers if the issue is (textually) designated to another branch then Ct cant hear it (reapportionment of state legislative districts is not a political question); or difficult/impossible to devise effective judicial remedy Justiciable: Scope of congressional qualifications Nonjusticiable: Whether or not a member meets congressional qualifications, Presidential authority to terminate a treaty, Impeachment proceedings (up to Senate), constitutional amendment process, foreign affairs, determination of when hostilities begin/end

THE NATION AND THE STATES IN THE FEDERAL SYSTEM

Necessary and Proper Clause: Congress has the power to make all laws which shall be necessary and proper for carrying into execution [Art. 1 8 powers] and all other powers vested by this Constitution McCulloch v. Maryland Congress has the power to charter a bank and Sts lack the power to tax it

Congresss judgment deserves deference when the means used are appropriate to achieving a

legitimate end rational basis Sts may not tax Fed - State may not impede valid constitutional exercises of power by the Federal government

THE COMMERCE POWER AND ITS FEDERALISM-BASED LIMITS 1. THE COMMERCE POWER BEFORE THE NEW DEAL
Gibbons v. Ogden If there is a substantial effect on commerce, Congress can regulate

Commerce is traffic, describes the commercial intercourse btwn nations/parts of nations, includes navigation.

Direct v. Indirect effects test: If the activity directly affects interstate commerce then it can be regulated Sugar Trust Case Manufacturing was not considered an area that can be regulated by Congress pursuant to the commerce clause. Formal reasoning mfg is preparation for commerce, any kind of production isnt commerce Substantial Economic effects test: The practical physical or economic effects of the regulated intrastate activities on interstate commerce Shreveport Rate Case Fed gov has power to regulate interstate commerce & purely intrastate commerce in cases where control of the former was not possible without control of the latter

Congressional authority includes the right to control all matters having a close and substantial relation to interstate traffic, to the efficiency of interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms.

Stream of Commerce test: Fed has power to regulate some local activities if they are in commerce or are an integral part of the current of commerce National Police Regulation: Fed gov has power to regulate things that are harmful; lottery tickets, food, transport of women; Hammer v. Dagenhart The Child Labor Case Congress has no power under the Commerce Clause to regulate labor conditions.

Con Law Condensed 2. THE COMMERCE POWER AND THE NEW DEAL FDR threatened Ct packing if Ct
didnt expand regulation under the commerce power Schechter Poultry Corp. v. U.S. Wages of EEs at a slaughterhouse not subject to federal control b/c only sold poultry to local retailers Ct still wouldnt regulate an entirely local activity (Effect of wages on commerce was indirect)

3. THE COMMERCE POWER AFTER THE NEW DEAL

COMMERCE Goods/economic activity Congress may regulate any activity which has a substantial economic effect on the stream of interstate commerce NLRB v. Jones & Laughlin Steel Corp. Congress has the power, under the Commerce Clause, to regulate labor relations acts which directly burden or obstruct interstate or foreign commerce, or its free flow, are w/in the reach of the congressional power Holding relies on the substantial effects of local economic activity on interstate commerce

U.S. v. Darby Overruling Hammer v. Dagenhart Prohibition of the shipment interstate of goods produced under forbidden substandard labor conditions is w/in the constl authority of Congress.

The power of Congress over interstate commerce extends to activities intrastate which have a substantial effect on the commerce or the exercise of the Congressional power over it Congress has the power to prohibit the transport of substandard goods

JUDICIAL DEFERENCE TOWARD EXERCISE OF THE COMMERCE POWER Wickard v. Filburn Local activity may be reached by Congress if there is a cumulative (aggregate), substantial economic effect on interstate commerce Heart of Atlanta Motel v. U.S.

If activity (even a local one) has a substantial and harmful effect upon commerce then Congress can regulate

Katzenbach v. McClung Congress banned racial discrimination in restaurants under the Commerce Clause b/c it burdened interstate commerce Perez v. U.S. Fed prohibition of violent loan sharking effects interstate commerce

4. THE REHNQUIST CTS REVIVAL OF INTERNAL LIMITS ON THE COMMERCE POWER

U.S. v. Lopez Limiting Congresss power under Commerce Clause; 3 categories of activities Congress can regulate under the commerce power:

1. the use of the channels of interstate commerce 2. the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the
threat may come only from intrastate activities

Con Law Condensed 3. those activities having a substantial relation to interstate commerce
COMMERCE CLAUSE REVIEW AFTER LOPEZ U.S. v. Morrison Congress may not regulate noneconomic, violent criminal conduct based solely on that conducts aggregate effect on interstate commerce

Commerce Clause regulation only applicable to an economic endeavor Violence Against Women Act not economic

LIMITS OF LOPEZ AND MORRISON Gonzales v. Raich Allowing the fed to regulate marijuana usage in CA because its quintessentially economic b/c of production, distribution and consumption of commodities for which there is an established and lucrative interstate market because economic, Congress can regulate under Commerce power

5. EXTERNAL LIMITS ON THE COMMERCE POWER: FEDERALISM AND THE 10th & 11th AMENDMENTS
STATE AUTONOMY AND THE 10th AMENDMENT 10th AMENDMENT The powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Coyle v. Oklahoma Sts get to choose their capitals U.S. v. California Sts not immune from fed regulation Garcia v. San Antonio Metro. Transit Min. wage and overtime regulations of FLSA apply to Sts NY v. U.S. - Congress cant commandeer the Sts to enact/enforce a fed regulatory program, i.e. Congress cant pass a law telling the Sts to pass a law THE SCOPE AND LIMITS OF THE ANTICOMMANDEERING PRINCIPLE Printz v. U.S. Anti-commandeering principle also applied to St Executory

The Fed Gov may neither issue directives requiring the Sts to address particular problems, nor command the Sts officers to administer or enforce a fed reg program

STATE SOVEREIGN IMMUNITY AND THE 11th AMENDMENT 11th AMENDMENT The judicial power of the U.S. shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another St, or by citizens or subjects of any foreign St. - A St cant be sued by citizens of a St in fed ct w/o consent

o Does not apply to: the fed gov, other Sts, St officials (if damages affect him and not the St), suits
where Congress has abrogated the 11th Amend immunity Ex parte Young Suit can be brought in fed ct to enjoin a St official from violating the Constitution/laws of the U.S. Seminole Tribe of FL v. FL Congress may not abrogate a Sts sovereign immunity [11th Amend] under the Commerce power; Can only abrogate via a power enacted under the 14th Amend (not under Art. 1 powers) Alden v. ME Extension of the St sovereignty immunity to include lawsuits against Sts in St ct for violations of fed law

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Central VA Comm College v. Katz Bankruptcy power distinguished from commerce power. Bankruptcy power can be used to abrogate St sovereign immunity

NATL POWERS: TAXING, SPENDING, WAR, TREATIES, AND FOREIGN AFFAIRS 1. THE TAXING POWER AS A REGULATORY DEVICE
TAXING AND SPENIDNG POWER The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the U.S. Congress has plenary power to tax and spend for the general welfare. Elements: 1. 2. 3. Must be fore the general welfare Non-coercive The ends sought must be related to the spending program

Congress can attach strings to federal grants of $$, which allows it to regulate indirectly where it cant legislate directly South Dakota v. Dole Fed tax valid if dominant intent is fiscal/revenue raising, cannot be a penalty

2. WAR & TREATY POWERS & IMPLIED POWER OVER FOREIGN AFFAIRS
Congress can regulate rent prices affected by the war (Can regulate anything incident to war) MI v. Holland The power to make treaties is delegated expressly to the fed; Treaties made by the Pres with 2/3 of Senate are the part of the supreme law of the land (Supremacy Clause Art. VI, 2)

FEDERAL LIMITS ON STATE REGULATION OF INTERSTATE COMMERCE 1. THE DORMANT COMMERCE CLAUSE
Where Congress hasnt regulated the Sts are free to regulate; St reg valid if: 1. 2. Nondiscriminatory St cant discriminate against interstate commerce in favor of its own local interests. St may act as a market participant but not a market regulator. No undue burden on interstate commerce Balance burden on interstate commerce w/State interest in regulation Ways to invalidate St laws:

1. Is the law rationally related to a legitimate St purpose? (rational basis scrutiny)

2. 3. 4. 5. Is there economic protectionism taking place? Is the economic protectionism outweighed by health/safety concerns? Is this is the lease restrictive means available? (strict scrutiny) If passes above tests: Does the law place an undue burden on commerce that outweighs the St interest?

1.

Facially discriminatory/protectionist laws against out of St commerce per se invalid,

exceptions: Market participant, Police power environmental, health, safety Philadelphia v. NJ St ban on importation of garbage was found facially discriminatory = economic protectionism (virtually per se rule of invalidity)

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Cant discriminate by way of imposing taxes

West Lynn Creamery v. Healy invalidated a MA law that imposed an assessment on all sales of milk to MA retailers but rebated all proceeds from this assessment to MA dairy farmers (2/3 of MA milk sales involved milk from out of St) Ct said it was effectively a discriminatory tax The ct has repeatedly invalidated St requirements that products be inspected, processed or treated inside the St before they may be shipped out of St Dean Milk Co. v. Madison St reg. erected an economic barrier protecting a major local industry against out of St competition. Reasonable and adequate alternatives were available. Rule: One St in its dealing w/another may not place itself in a position of economic isolation, creates a discriminatory burden on interstate commerce Carbone v. Clarkstown - discrimination against interstate commerce in favor of local business or investment is per se invalid. Clarkstown had nondiscriminatory alts for addressing the health and environmental problems alleged United Haulers Asss v. Oneida-Herkimer Solid Waste Mgmt - laws that favor the gov but treat every private biz (both in and out of St) the same do not discriminate against interstate commerce THE MARKET PARTICIPANT EXCEPTION South-Central Timber Devel. v. Wunnicke Rule: if a St is acting as a market participant, rather than as a market regulator, the dormant commerce clause places no limitations on its activities

Alexandria Scrap - Nothing in the Commerce clause prohibits a St, in the absence of

congressional action, from participating in the market and exercising the right to favor its own citizens over others.

Reeves v. Stake upheld a SD policy of restricting the sale of cement from a state owned plant to St

residents; commerce clause places no limitations on a Sts refusal to deal w/particular parties when it is participating in the interstate market

White v. MA Council of Construction Es sustained an executive order of the mayor of Boston that

required all construction projects funded in whole or in part by city funds to be performed by a work force of at least 50% city residents Limit: It allows a St to impose burdens on commerce w/in the market in which it is a participant but allows it to go no further.

2.

Facially neutral laws w/a discriminatory/protectionist effect on out of St competitors

Baldwin v. GAF Seelig, Inc. Held the NY Milk Control Act, which set the minimum prices to be paid to milk producers by NY dealers & prohibited NY sales of out-of-St milk for less than that price, unconstitutional The police power may not be used by the St w/the aim and effect of establishing an economic barrier against competition w/the products of another St.

Reas: Unreasonable clog on the mobility of commerce; basically equivalent to duties/customs, sets up a barrier to traffic btwn Sts; Constitution framed upon the theory that we sink/swim as one nation

St cant limit access to supplies

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Hunt v. WA St Apple Invalidated NC law re: apple labels - law discriminated against WA growers in favor of local counterparts even though it purported to protect consumers. Bacchus Imports v. Dias Invalidated a HI statute that exempted from the Sts 20% wholesale liquor tax a type of liquor made in HI. Any effort to confer a benefit upon local industry not granted to out-of-St industry is presumptively invalid as discrimination under the Commerce Clause

3.

Facially neutral laws that have a disproportionate adverse effect on interstate commerce:

Does St regulation (even if not discriminatory) have a disproportionate effect on interstate commerce as to justify not allowing the St to do it? Pike v. Bruce Church Where the statute regulates even-handedly to effectuate a legitimate local public interest and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the local benefits.

Balancing test: legitimate local interest v. burden on commerce if clearly excessive then wont be upheld unless no less restrictive means exist

- St statutes requiring business ops to be performed in the home St that could more efficiently be performed elsewhere are virtually per se invalid Kassel v. Consolidated Freightways 1981 Invalidated a St law prohibiting long trucks to drive on hwys in IA because it unconstitutionally burdened interstate commerce. Where the Sts safety interest is illusory and its regulations impair significantly the fed interest in interstate transportation the St law is invalid Less restrictive means available, evidence that the longer trucks were just as safe, shifted burden to other Sts, more accidents b/c driving longer distances What a St can do: Gibbons v. Ogden Commerce power is exclusive to the Fed gov, although Sts can pass regulatory laws that have an impact on commerce Willson v. Black-Bird Creek Marsh Co. S. Ct. upheld St law, which allowed the Co. to build a dam on the creek even though it prevented boats from navigating it. Reasoning that the damn increased the value of the property and health of inhabitants and the measures did not collide w/fed powers the power was reserved to the St. Cooley v. Board of Wardens Act declared that pilots were to be regulated by the Sts until Congress took further legislative action. Power of Congress to regulate commerce is not at odds w/St power to regulate pilots because pilots are local not national

Congressional commerce power not exclusive, some areas overlap w/St regulation, i.e. local regulation; Selective exclusiveness if national concern then St cant regulate; if local concern, ok for St to regulate

Maine v. Taylor upheld a law banning the importation of out of state baitfish because the ban had a legitimate environmental purpose, like quarantine laws

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A St may provide subsidies to in-St producers from general revenues w/o being required to provide them to

out-of-St producers too Exxon Corp. v. Governor of MD Upheld a law prohibiting producers or refiners of petroleum products from operating retail svc stas. in MD

Reas: Law did not discriminate against interstate goods, nor favor local producers and refiners b/c MDs entire gas supply flows in interstate commerce & there are no local producers or refiners nor disparate treatment btwn local/interstate commerce; No barriers were created against interstate independent dealers; no prohibition of the flow of interstate goods, no distinction btwn in/out of St goods

MN v. Clover Leave Creamery Upheld a St law banning sale of milk products in plastic nonreturnable containers but permitted sales in nonreturnable pulpwood containers

Reas: Law regulates evenhandedly by prohibiting all milk retailers from selling their products in plastic, nonreturnable containers. In-St bottle producers may be benefitted, but that doesnt make it discriminatory; burden on out-of-St sellers not clearly excessive

Rule: Only if the burden on interstate commerce clearly outweighs the Sts legitimate purposes does such a regulation violate the Commerce Clause.

Exxon and Clover Leaf focused on the lack of harm to similarly situated out-of-St entities in upholding the St laws BALANCING INTERSTATE HARM AGAINST LOCAL BENEFIT So. Pacific Co. v. AZ 1945 Invalidated the AZ Train Limit Law which limited # of permissible RR cars

Reas: law surpassed what was essential for safety and tried to regulate interstate train operations, which only Congress can do

Bibb v. Navajo Freight Lines 1959 Mud flap reqs. passed for safety placed an unconstitutional burden on interstate commerce) St laws that conflict w/fed reg measures and those which run afoul of free trade policies are invalid

Lewis v. BT Investment Managers Invalidated a FL law prohibiting ownership of local investment advisory businesses by out-of-St banks

Reas: Law prevents competition in local markets by out-of-St firms; prevents foreign enterprises from competing in local markets; law displayed a local favoritism/protectionism

Edgar v. Mite Corp. Held unconstitutional the IL Biz Take-Over Act, designed to regulate offers made to Cos. that had certain specified biz contacts w/IL; Act imposed a substantial burden on interstate commerce which outweighs its local benefits CTS Corp. v. Dynamics Corp. of America Upheld St law providing that a purchaser who acquired control shares in an IA corp could acquire voting rights only to the extent approved by a majority vote of the prior disinterested stockholders

Act doesnt violate Commerce Clause because its not discriminatory and doesnt subject activities to inconsistent regs; purpose of the act is to protect shareholders; Ct deferred to the judgments of lawmakers

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concerning the legislation; Act only limitedly affected commerce and St had a big interest in protecting its corps and shareholders

2. THE INTERSTATE PRIVILEGES AND IMMUNITIES CLAUSE OF ART 4

PRIVILEGES & IMMUNITIES CLAUSE - Art. 4 2 The citizens of each State shall be entitled to all Privileges and Immunities in the several States Prevents one St from discriminating against citizens of another St re: basic fundamental privileges/rights

1. Look for discrimination against citizens/residents re: a fundamental right?, if so, then 2. Is the law aimed at a particular source of evil? strict scrutiny
3. No less burdensome alternative exists Comity requirement any benefits a St gives to its citizens, it has to give to OOS citizens, in re: fundamental privileges/rights

Piper v. NH Bar exam residency requirement unconstitutional b/c it is a basic economic right

Differences btwn P&I and Commerce Clauses:

Corps & aliens are not protected under P&I; Under Commerce Clause Congress can authorize St practices that would otherwise be impermissible under the Dormant Comm. Clause (violations can be waived by Congress) P&I cannot be waived; P&I only extends to the exercise of fundamental rights; No market participant exception under P&I; P&I only invoked if discriminatory, Comm. Clause springs up in many situations

Camden Every inquiry under P&I clause must be done w/a high degree of deference to the St law Only activities that are fundamental count as a privilege of interstate citizenship private employment counts as fundamental privilege THE SCOPE AND LIMITS OF INTERSTATE PRIVILEGES AND IMMUNITIES S. Ct. of NH v. Piper P&I clause does not preclude discrimination against nonresidents where: 1. there is a substantial reason for the difference in treatment; and

2. the discrimination practiced against nonresidents bears a substantial relationship to the Sts objective 3. CONGRESSIONAL ORDERING OF FEDERAL-STATE RELATIONSHIPS BY PREEMPTION AND CONSENT
SUPREMECY CLAUSE Fed law supreme

Preemption Where Congress intends to occupy a given field (look at what purpose of Congress was), any conflicting St law is invalid Supersession Fed law supersedes any St law which is in direct conflict

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o St law will be upheld if it goes above a fed minimum standard. St can give greater protection than fed law, but not less. PG&E v. St Energy Resources Conservation & Development Nuclear waste disposal case. St law is preempted when it conflicts w/fed law or stands as an obstacle to the accomplishment/execution of purposes/objectives of Congress

Held: CA had an economic purpose for passing the law, which doesnt conflict w/fed purposes/Act

MODES OF PREEMPTION ANALYSIS Field preemption look at what the purpose of Congress was Where fed occupies a field of regulation, Sts cannot conflict or interfere with, curtail or complement, the fed law, or enforce addtl/auxiliary regulations If impossible to comply w/both St and fed regulations then St preempted Conflict preemption Fed OSHA scheme forbid duplicative St regulation Congress may preempt St power by:

1. 2. 3.

Express statement issue is whether a St statute falls w/in the area preempted Implied occupation of a regulatory field Requires a clear showing that

Congress meant to occupy a field and so displace the states from regulation on that subject matter Rice Have to ask what Congresss purpose was Implied preclusion of conflicting state regulations

CONGRESSIONAL CONSENT TO STATE REGULATIONS Congress, under the Commerce clause, can consent to St regulation that would otherwise be considered unconstitutional - Prudential Ins. Co. v. Benjamin, White v. Massachusetts Construction Council

SEPARATION OF POWERS
FEDERAL EXECUTIVE POWER Art 2 2 Power and obligation to faithfully execute the law Appointment Power Senate confirmation required for appointments

o Officers of the U.S. must be appointed by the President (Officers have admin functions)
Removal Pres can remove purely executive officials, not judges/officials w/fixed terms w/o good cause Congress can delegate appointment of inferior officers to judiciary/exec branch, but has no power to remove Presidential veto of legislative measure must do so within 10 days; can be overridden by 2/3 of each house Pardon power applies to offenses against the U.S. (federal government) does not apply to State offenses Privilege absolute as to military/diplomatic secrets

o Absolute immunity in civil suits for $ damages for official acts while in office;

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o Commander and Chief of Armed Forces Broad emergency powers can deploy troops while not at war Basic Principles: Congress has power to declare war and raise and support armed forces

1. Look to see if Congress has granted executive action (tripartite analysis from Youngstown)
2. 3. 1. Look and see what proper role of Ct is Pres action must still be in accord w/constitutional requirements

EXECUTIVE VIOLATION OF THE SEPARATION OF POWERS

Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) Held: The President did not have the inherent authority to seize private property in the absence of either specifically enumerated authority under the Constitution or authority conferred by Congress. Pres must get his power either directly from the Constitution or from Congress Congress has the exclusive authority to make laws necessary and proper to carry out the powers vested by the Constitution

Jackson concurring opinion: Tripartite distinction of Presidential powers 1. (Pres Power + Congressional Power) President acts pursuant to an express/implied authorization of Congress. Here authority is at max.

2. Pres acts in absence of either a congressional grant or denial of authority (Congress is silent) Pres can
rely on his powers + zone of twilight where he and Congress may have concurrent authority 3. (Pres power Congress power) Pres acts incompatibly w/expresses/implied will of Congress; his power is at its lowest ebb EXECUTIVE AUTHORITY OVER FOREIGN AND MILITARY AFFIARS Constitution expressly gives power to Congress to raise and support armies and provide and maintain a navy Executive agreements supreme over conflicting St laws Dames & Moore v. Regan Executive orders dissolving judgments and suspending pending civil claims against Iranian government were constitutional.

Presidents action taken pursuant to specific congressional authorization is supported by the strongest of presumptions and the widest latitude of judicial interpretation

2. EXECUTIVE DISCRETION IN TIMES OF WAR OR TERRORISM

Ex Parte Milligan Substitution of habeas corpus is unconstitutional when civilian courts are operating Habeas corpus can be suspended, but not substituted; Martial law ok only when no power is left but the military

Ex Parte Quirin unlawful German combatants

Express act of Congress (passing Articles of War Act) gave military tribunals jdn to try offenders or offenses against the law of war

Eisentrager Never in U.S. so ok to try combatants in Germany

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EXECUTIVE DETENTION AND TRIAL OF ENEMY COMBATANTS AFTER 9/11 Rasul v. Bush Sovereignty at GTMO b/c the U.S. had exclusive jdn & control over it subject to fed cts jdn under the habeas statute Hamdi v. Rumsfeld - US citizen seized in Afghanistan when fighting against the US

Held: although Congress authorized Pres to detain combatants, due process demands that, absent a suspension of the writ of habeas corpus by Congress, a citizen held in the US as an enemy combatant must be given a meaningful opportunity to contest the factual basis for his detention before a neutral decisionmaker

THE SCOPE OF HAMDI Hamdan v. Rumsfeld

Main issue, Hamdan wasnt allowed to hear the evidence presented against him; Geneva convention states that the accused must be present for his trial and privy to the ev against him Power to establish military tribunals rests w/Congress and Pres jointly 3 situations where the use of military commissions is sanctioned: 1. 2. Substituted for cts when martial law declared to try civilians as part of a temporary military gov over occupied enemy territory or territory regained from an enemy where civilian gov cannot/doesnt function

3. violations of the law of war (used as rational by gov to hold Hamdan)

Held: Hamdan charged w/conspiracy, which is not a law of war violation, so it cannot be heard by the commission for lack of jdn Bumedine v. Bush Detainee Act provided military tribunal to determine enemy combatant status Ct ruled this was an inadequate substitute for habeas corpus in GTMO

3. CONGRESSIONAL VIOLATION OF THE SEPARATION OF POWERS

CONGRESSIONAL CONTROL OVER THE ACTIONS OF THE EXECUTIVE BRANCH Delegation Congress can delegate its legislative powers

Legislative veto cant be delegated and retracted; Congress can give the power but cant take it back = legislative veto, see Chadha

Non-Delegation Doctrine: Congress cant delegate powers uniquely assigned to it (impeachment); cant delegate all legislative power As longs as Congress sets forth some intelligible principle to guide the exec. branch in carrying out the delegated authority, the delegation will be upheld INS v. Chadha

Congress was trying to nominate executive officers and also regulate their actions and agency regulations, One-house legislative veto unconstitutional since the action taken by the House was not w/in any of the express constitutional exceptions authorizing one House to act alone

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If Congress doesnt like what the admin. agency does it must go through the legislative process to overturn it BICAMERALISM AND PRESENTMENT Clinton v. NY Held: The procedures authorized by the Line Item Veto Act are unconstitutional b/c would be like giving the President legislative powers LIVA unconstitutional b/c Constitution states that the Pres either take the bill or leave it, in whole, otherwise he would be substituting his policy jdmt for that of Congress CONGRESSIONAL CONTROL OVER EXECUTIVE OFFICERS

1. Congress may authorize the president to take action or to bar the president from acting but may not bar
president from exercising powers given to him by the constitution, nor authorize the president to take actions prohibited by the constitution

2. Congress may not appoint superior executive officers (only inferior ones)
3. Congress may not try to regulate executive officers functions Power allowing inter-branch appointments is invalid, however, if a branch could have appointed the person anyways, they can still appoint them President must have good reason for removing executive officers

Bowsher v. Synar - Congress cannot reserve for itself the power of removal of an executive branch officer except by impeachment Congress cant restrict Press power to remove executive officers Congress can limit Press power to remove by stating he can only remove for cause Morrison v. Olson Explicit congressional limitation on Executive Branch ok when: 1. 2. Does not impermissibly undermine the Exec Branch powers, or disrupt the balance between the branches by preventing the exec branch from accomplishing its functions OK for Congress to delegate power to set fed guidelines for crim sentences If allegations of Executive Branch violating the law we have this problem, are they going to prosecute themselves?

o the appointed official could only be removed for good cause court says because it doesnt
burden executive through the attorney general retains ample authority to make sure they are living up to their responsibilities o had independent counsel because being directly subject to the executive means they could prevent investigation of their own activity U.S. v. Nixon When determining Pres immunity, balance the need for immunity with criminal justice Official actions immune unless info is needed to develop facts in a criminal trial Unofficial actions not immune

THE BORs & POST-CIVIL WAR AMENDMENTS

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1. 2. INDIVIDUAL RIGHTS BEFORE THE CIVIL WAR - Ct held BOR only restricted natl govs, not St THE POST-CIVIL WAR AMENDMENTS

govs BORs made applicable to the Sts through the Due Process Clause of the 14th Amend.

Provisions that dont apply to Sts: 2nd Amend (right to bear arms), 5th Amend (right to grand jury), 7th Amend (right to jury trial in civil cases), 8th Amend (right against excessive bail)

14th AMEND PRIVILEGES AND IMMUNITIES No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S. Keep Equal Protection in mind too

P&I protects right of national citizenship right to petition Congress for redress of grievances, right to assemble/travel Residency requirement for collection of unemployment is unconstitutional because it violates the 14th Amend P&I right to travel

Slaughterhouse Cases P&I Clause of 14th applies to U.S. citizens, not St citizens; up to the St govs to protect, not the Fed gov; Due Process, not P&I Clause, makes BORs applicable to Sts Saenz v. Roe - CA law giving new CA residents less welfare than old CA residents

States cant enacts laws that infringe on fundamental rights strict scrutiny review

Shapiro v. Thompson A state cannot discriminate against its citizens by denying welfare benefits to people w/in the 1st year of residency Placed a penalty on travel, which is a fundamental right

3. THE INCORPORATION OF THE BILL OF RIGHTS THROUGH THE DUE PROCESS CLAUSE
...nor shall any State deprive any person of life, liberty, or property, without due process of law -- If fundamental to justice, then incorporated

DUE PROCESS
1. SUBSTANTIVE DUE PROCESS AND ECONOMIC LIBERTIES
Lochner v. NY - NY used police power to enact a law limiting # of hours bakers could work

Held: Statute interfered with the individual right to contract protected by the 14th Amendment; No legitimate health issue, so invalid use of police power The act must have: (1) a direct relation, (2) as a means to an end, and (3) the end must be appropriate and legitimate before an act, which interferes w/the general right of an individual to freely contract his labor, can be held to be valid

Post Lochner Back and forth about court review of legislative determinations sometimes ct agreed w/legislature, sometimes not Adair v. U.S. Fed law prohibiting E from requiring EEs to sign agreement not to unionize unconstitutional Adkins v. Childrens Hospital min. wage law for women violated due process Nebbia v. NY - Min. price set on milk

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Due Process demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. rational basis West Coast Hotel v. Parrish - Upholding a St min. wage for women Ct shift, more deferential to St legislature Rational relation test: Regulation is reasonably related to its subject and is adopted in the interests of the community U.S. v. Carolene Products FN 4 Deferential, rational basis review normally applied to legislative judgment, but a higher, more skeptical review when the legislation appears to be in conflict w/BORs/Constitution MINIMUM RATIONALITY REVIEW OF ECONOMIC LEGISLATION

2. TEXTUAL GUARANTEES OF ECONOMIC LIBERTIES: THE TAKINGS CLAUSE

TAKINGS CLAUSE 5th Amend ...Nor shall private property be taken for public use, without just compensation 3 Ways to take property: 1. 2. 3. Eminent domain Gov taking for public use (requires just compensation) Inverse condemnation when owner seeks compensation for governmental interference w/property, i.e. airport noise Police power regulation no compensation required THE PUBLIC USE REQUIREMENT Berman v. Parker - S. Ct gives extreme deference to what the legislature determines as a public use HI Housing Authority v. Midkiff

Deferential - Taking justified b/c the exercise of eminent domain was rationally related to a conceivable public purpose HI Act constitutional because regulating an oligopoly (market failure), a classic exercise of St police power; Only a takings purpose, not its mechanics, must pass scrutiny under the Public Use Clause purpose here was to break up the oligopoly to benefit the public

Legislative purpose clear and means rational = legitimate use of eminent domain power

Kelo v. City of New London Expanded public use to public purpose

IMPLICATIONS OF KELO Wayne v. Hathcock Cant justify eminent domain taking by saying another party will put land to a more productive use there must be a public purpose REGULATORY TAKINGS Pennsylvania Coal v. Mahon St law equivalent to regulatory taking because it made the exercise the companys property rights commercially impracticable

General Rule: while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.

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IMPLICATIONS OF PA COAL Miller v. Schoene Required destruction of cedar trees did not constitute a regulatory taking no compensation required (except for the cost to remove the trees) o VA crop Diseased red cedars not commercially viable, threatened important apple orchards that were a key St does not exceed its constitutional powers by deciding to destroy one class of property in order

to save one that is of greater public value according to the legislature serving a public purpose Keystone Bituminous Coal Assn v. Debenedictis Restrictive law requiring company to leave 50% of coal providing surface support under bldgs not a taking

Protection of public interest in health and environment; remaining coal only 2% of owners total

Penn Central Transportation Co. v. NY City Designation of Grand Central as a landmark taking Balancing test: factors to consider in balancing public gain against private harm: o Economic impact of the regulation on the claimant

o The extent to which the regulation has interfered w/distinct investment-backed expectations
o Character of governmental action More likely to be a taking when gov interference is a physical invasion Loretto Permanent physical occupations = per se taking Lucas v. So. Carolina Coastal Council When regulation denies all economically beneficial/productive use of land it is per se compensable w/o inquiry into the public interest advanced Even temporary taking of all use of the property is compensable Owners can challenge restrictions on property that were present prior to purchase Temporary development bans are to be evaluated under the Penn Central test, not the categorical rule from Lucas. Nollan Condition on beachfront property = taking b/c the purpose of the prohibition (preservation of public views of coastline) was not furthered by the prohibition, i.o.w. means didnt justify ends

higher level of scrutiny to whether an essential nexus existed between the condition and the regulatory purpose

Dolan v. City of Tigard Conditions unconstitutional b/c required P to give up right to just compensation

Must be an essential nexus (means & ends) between the St interests and the permit condition exacted by City City must make a determination that the required condition is related both in nature and extent to the impact of the proposed development Rough proportionality test

3. SUBSTANTIVE DUE PROCESS AND PRIVACY

The distinction between the levels of review for fundamental liberties and those that arent fundamental have become somewhat blurred more sui generis (on the Cts own accord) SUBSTANTIVE DUE PROCESS

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Con Law Condensed 1. Economic regulation very little law on this subject to rational basis scrutiny need only be rationally
related to some legitimate objective

2. Fundamental rights Strict scrutiny Gov regulation must be necessary to a compelling St interest Right to privacy, travel, vote CAMPER a. Right to Privacy:

i. Contraception Right to use and purchase ii. Abortion Rational basis scrutiny used - Right to have w/o interference from St before
viability Casey 1. 2. may adopt regulations as long as they dont unduly burden the mothers right to choose after viability, St may prohibit abortion unless necessary to protect moms life/health

3. Stenberg cant prohibit all partial birth abortions

4. No right to abortion funding, no duty to provide abortions in public hospitals, spousal consent not required, parental consent required for minors ok as long as opportunity for judicial bypass

iii. Marriage No restrictions allowed iv. Procreation right to be free from excessive governmental intrusion v. Education only applies to private edu parents have right to privately educate kids vi. Relations (family) right to keep nuclear family together Moore v. City of East
Cleveland only applies to related people

1. Lawrence v. Texas homosexual men have the right to engage in private

conduct w/o governmental intervention

2. BSA cant be forced to accept a gay scoutmaster

Freedom to teach a foreign language = a protected liberty Parents have protected liberty to raise and educate their children privately Marriage and procreation are a fundamental liberty (cant sterilize 3x felony offenders); Strict scrutiny applied to St laws that interfere w/substantive rights/privacy Griswold v. Connecticut Invalidating St law that prohibited use of contraceptives Right to privacy is a penumbra of the BOR (protected freedom) Gov purpose to control/prevent activities constitutionally subject to St regulation may not be achieved by means which invade the area of protected freedoms

Concurring 9th Amend The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people rationale for finding privacy in marital relations to be fundamental and a penumbra

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Concurring 2: invalid via Due Process Clause of 14th Amendment b/c violates basic values implicit in the concept of ordered liberty Poe v. Ullman The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. Right to privacy is not absolute Sts cant regulate the details of permitted marriages, but can regulate who can get married CONTRACEPTION Eisenstadt v. Baird expanded privacy from Griswold to encompass single people Carey v. Population Services, Intl Invalidating St prohibition of sale/distribution of contraceptives to minors under 16 Roe v. Wade Right of privacy includes a womans right to choose Only personal rights that can be deemed fundamental, or implicit in the concept of ordered liberty are included in the guarantee of personal privacy

Distinguished stages of pregnancy by trimesters Balancing Sts interest in protecting mothers health and the potential for life in fetus

ABORTION Planned Parenthood of So. Eastern PA v. Casey If St regulation places an undue burden on a womans right to abortion then it is invalid Trimester framework of Roe v. Wade rejected A St may enact regulation to persuade a woman not to have an abortion as long as no undue burden Right to abortion before viability; subsequent to viability a St may regulate except where necessary for the preservation of life/health of mother A St may enact legislation aimed at ensuring an informed decision that expresses the Sts preference to birth St cant require spousal notification Parental consent requirements ok provided there is an adequate judicial bypass procedure Ok to record abortion info IMPLICATIONS OF CASEY Ayotte v. Planned Parenthood of N. New England St may not restrict access to abortions that are necessary in appropriate medical judgment for preservation of the life or health of the mother Stenberg v. Carhart St cant completely bar partial birth abortions MARRIAGE AND FAMILY RELATIONSHIPS Loving v. Virginia St cant ban interracial marriage under Due Process Clause of 14th Amend. Marriage fundamental right Zablocki v. Redhail St cant require a payor of child support to get ct approval before being allowed to get married

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Turner v. Safley Cant require that prisoners obtain approval to marry Moore v. East Cleveland Cant limit family to nuclear family Belle Terre v. Boraas Family protection doesnt apply to unrelated people Troxel v. Granville Parent can prohibit grandparents from visiting grandkids Michael H. v. Gerald D. Child of a married person is presumptively of the marriage (not adultery) SEXUALITY Bowers v. Hardwick Upholding GA sodomy law Lawrence v. Texas People have the right to conduct sexual behavior w/o being punished Decision made under the Due Process Clause of the 14th Amend. Overruled Bowers based on historical view of sodomy laws (meant to apply to rape charges, not consenting adults); European Convention of Human Rights (forbade Bowers type laws); Liberties protected by Due Process Clause extend to homosexuals too TX hasnt stated any legitimate interest for interfering with this liberty No legitimate articulated St interest Mere moral disapproval wont withstand a rational basis review Implications Ct didnt apply Lawrence holding to gay marriage b/c promoting the institution of marriage would be a legitimate St interest If moral disapproval isnt a legitimate St interest, what is the basis for prohibiting gay marriage? ***If adequate St grounds for deciding case then the fed wont hear the case DEATH Cruzan v. Director, MI Dept. of Health: OK for St to place evidentiary requirements on individuals right to refuse life-sustaining medical treatment (patients wishes must be shown by clear & convincing evidence) Patients right to refuse medical treatment may be inferred from past decisions Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining med treatment balance liberty interests against St interests Washington v. Glucksberg Substantive Due Process analysis: 1. tradition? 2. Is there a careful description of the asserted fundamental liberty interest? Is the fundamental right/liberty deeply rooted in the Nations history and

Here, history rejects the notion of the asserted right/liberty and the St has a legitimate interest in the regulation that is rationally related to the ban Assisted suicide not allowed because it isnt a fundamental right, which is why you only need to apply the rational relation test

Distinguishing Cruzan because the right protected there is the right not to be touched

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Concurring: A patient suffering from terminal illness and experiencing great pain can obtain medication to alleviate suffering to the point that it might hasten death (morphine) Implications Vacco v. Quill NY did not violate the Equal Protection Clause by prohibiting assisted suicide while permitting patients to refuse lifesaving medical treatment

1. PROCEDURAL DUE PROCESS AND THE RIGHT TO A HEARING

DEFINING PROPERTY AND LIBERTY Goldberg v. Kelly Due process required a welfare recipient to be afforded an evidentiary hearing before termination of benefits Board of Regents v. Roth Roth had no constitutional right to a hearing before being denied rehire Perry v. Sindermann right to a hearing b/c he alleged that the school had a de facto tenure program Bishop v. Wood Cleveland Board of Edu v. Loudermill Entitlement to due process comes from the constitution, so a St cant define away what procedure youre entitled to Town of Castle Rock v. Gonzales Paul v. Davis WHAT PROCESS IS DUE? Mathews v. Eldridge Test 1. Private interest that will be affected by the official action

2. Risk of erroneous deprivation (Probable value of additional or substitute procedural safeguards fiscal and
admin burdens) 3. Govs interest

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