Constitutional Law I Outline...2013 SPRING CONSTITUTIONAL LAW I KELLEY Hauled into court not because...

2013 SPRING CONSTITUTIONAL LAW I KELLEY

Constitutional Law I Outline Professor: Amy Kelley Text: Introduction to American Constitutional Structure (2011 Supp.) by Funk

1. JUDICIAL BRANCH a. Judicial Power

i. “It is emphatically the province and duty of the judicial department to say what the law is” (Marbury)

The power of the government is limited by the Constitution Constitution is the Supreme law of the land Judges interpret the Constitution

b. Federal Supremacy i. General: The U.S. Constitution vests the whole judicial power of the U.S. in

SCOTUS…This power is expressly extended to all cases arising under the laws of the U.S.

ii. “Ultimate interpreter of federal law is US Supreme Court” (Martin v. Hunter) iii. “The Supreme Court’s interpretation of the Constitution is the supreme law of

the land” (Cooper v. Aaron) iv. The Judicial power of the US, shall be vested in one supreme court, and in such

inferior Courts as the Congress may from time to time ordain and establish – Art. III, § 1

v. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original jx. In all other cases before mentioned, the supreme Court shall have appellate jx, with exceptions Congress can make – Art. III, § 2, cl. 2

vi. Constitution, laws made pursuant to Constitution, and Treaties shall be supreme law of land – Art VI, cl. 2

c. Judicial Review of Government Officials i. Not Allowed Official Capacity

Large overarching national policy decisions Not interfering with individual rights None of the Judiciary’s business

ii. Allowed Individual Capacity The judiciary will interfere

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Hauled into court not because of who you are but because of the nature of your conduct.

d. Separation of Powers i. Legislative

Congress can take away the Supreme Court’s appellate jurisdiction as long as the Judicial Power has somewhere to vest. (Ex Parte McCardle) (US v. Klein)

a. As long as it does not violate other parts of the Constitution, like excluding people of color from bringing claims (due process) (Ex Parte McCardle)

b. Either eliminate lower courts, or take away supreme court jurisdiction, but Congress can’t do both.

Congress cannot create rules that essentially decide the case for the Supreme Court (US v. Klein) (Presidential Pardon, Confederate Property case)

Lower federal courts do not exist unless Congress creates them Congress cannot completely strip the federal courts of jurisdiction

ii. Executive See Political Question Doctrine

2. JUSTICIABILITY a. General: whether the Constitution has placed the decision in question in a place other

than the judiciary b. Theories

i. Judicial Only Hears Cases and Controversies / Not Make Political Decisions Art. III, § 2, cl. 1

ii. Separation of powers Preserving the authority of the various branches of government from the

other branches of government a. Horizontal separation of power

i. Federal Court vs Other Federal Branch b. Vertical separation of powers

i. Federal vs. State c. ADEQUATE & INDEPENDENT DOCTRINE

i. General: where the decision of the state court is deemed to rest upon a nonfederal ground which independently and adequately supports the state court judgment, the Supreme Court will not exercise jurisdiction to review.

ii. Adequate: whether the decision violates the Constitution, must be procedurally and substantively constitutional

Procedural: state court process must be procedurally constitutional

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a. E.g. jury issues, peremptory challenges Substantive: the state law must be federally constitutional and not

preempted a. Minimum NOT Maximum: federal constitutional rights

are the “floor” but not the “ceiling.” iii. Independent

THE SUPREME COURT REQUIRES AN EXPRESS STATEMENT THAT THE CASE IS INDEPENDENTLY BASED ON STATE LAW (Michigan v Long)

Purpose: maintain clarity in precedent, avoid accidentally giving advisory opinions

NO Advisory Opinions, only “cases and controversies” d. POLITICAL QUESTION DOCTRINE Justiciability of Issues

i. Deciding that a case is a political question IS an issue of Constitutional interpretation

ii. Rule: Federal courts will not review the merits of the case if it is found to be a political question

iii. Elements: Not all of these need to be present, but at least one or a few should be (Baker v. Carr) Constitutional Elements:

“A textually demonstrable constitutional commitment of the issue to a coordinate political department”

a. Does the Constitution place the issue under a specific branch’s authority

b. Whether the text is textually committed; and, c. To what extent the text is textually committed

“Lack of judicially discoverable and manageable standards for resolving it”

a. There is no law to interpret, no statute b. If they went ahead with the case, they would be making law

“The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion”

a. Do not want judicial branch making INITIAL policy decision b. Best Practice: make sure a law exists that shows legislative

determination c. Initial is the key word here d. Similar to #2 e. Constitutionally based – separation of power

Prudential Elements:

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“the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government”

a. The Court should not show a lack of respect due to the coordinate branches

b. This has never shown up in a case without the first three accompanying it.

“an unusual need for unquestioning adherence to a political decision already made; OR”

a. Mostly prudential (good sense judgment) b. The deed is done, the die is cast c. The courts do not take cases that deal with Congress’s power

to declare war and the fact that the president is the commander in chief

d. To avoid possible backlash i. There might be rebellions or riots ii. There might be an international melt down iii. The other branches just might not listen or obey the

court “The potentiality of embarrassment from multifarious [differing

interpretations] pronouncements by various departments on one question”

a. Prudential requirement b. Foreign relations

i. All questions touching foreign relations are political questions

c. Dates of duration of hostilities i. Does not review, when, whether or where a war has

ended d. Validity of enactments

i. The status of Indian Tribes e. Republican form of government – Luther v. Borden f. It is up to Congress to decide what government is the

established one of a state. iv. Baker v. Carr

TN voter complained that he and other poor people were systematically discriminated against b/c of the districting w/in the state for representatives

v. Powell v. McCormack House Appointment

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Liberal Congressman from NY grossly misused campaign donations to fund his extravagant lifestyle

The Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution

NOT Political Question: the Constitution has not textually committed the power to the House

Constitutional custom and usage is not precedent but may be looked at vi. Nixon v. US Impeachments

Impeached judge challenged the Senate impeachment hearing “Sole” power of the Senate to try impeachments of judges If the courts review it and second guess it, then the Senate does not

have sole power. e. CONSTITUTIONAL STANDING Justiciability of Parties

i. Generally Proper parties A judge may bring improper standing claim Sua Sponte

ii. Lujan v. Defenders of Wildlife “Irreducible” Constitutional Standing Requirements “alleged such a personal state in the outcome of the controversy as to

assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illuminations of difficult constitutional questions”

iii. Three elements (Lujan) Injury in Fact: the plaintiff must have suffered injury in fact of an

invasion of legally cognizable protected interests which is: a. Concrete (NOT abstract), b. Particularized (NOT generalized grievance)

i. Must be p’s injury, personal, specific, not an injury that happened somewhere to someone else

c. Actual or imminent damage (NOT conjectural, hypothetical, speculative)

i. In Lujan p did not have plans or tickets to go back to see the animals so their damages were not imminent

Causation: there must be a causal connection between the injury and the conduct complained of

a. The injury has to be fairly traceable to the challenged action of the D, and not the result of the independent action of some third party not before the court

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b. in Lujan, the funding for the project was so small that it appears that there wasn’t not a strong causal connection

Redressability a. If you should prevail, is there a substantial likelihood that the

court will be able to remedy your problems i. In Lujan, because the funding by the US government

was a small part of the project, it is not likely that the project would be stopped if funding was taken back

b. Not about the merits or the likelihood that you are going to win. c. If court has no power to enforce, there is no redressability

(otherwise, it would be advisory opinion) d. Past exposure to illegal conduct does not itself show a present

case or controversy regarding injunctive relief if unaccompanied by any continuing present adverse effects

iv. Associational or Organizational Standing Can establish standing in own right For example if Congress passed a bill that denied tax exempt status to

nonprofit organizations a. Then a nonprofit organization would have a claim

Otherwise the association or organization a. Must show that one or more members of your

organization have standing b. Must show that the purpose of the organization have

subject matter c. The member of the group does not need to be a named

party. v. Case examples:

Clapper: no standing, case with gov’t spying Hollingsworth: prop 8 issue where defense was argued by proponents

of the initiative who did not have standing, must have been defended by CA.

Windsor: (DOMA) Old woman married to her partner. If they are married, then they get the tax breaks, and if they are not married, then there estate tax liability will be way higher. She has standing for the potential injury. The justice dept is not defending the laws.

f. PRUDENTIAL STANDING LIMITATION i. Generally

A person cannot raise the rights of another a. No third party (third party rule)

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Have to be within the “zone of interest” a. Have to be part of the public that the statute or regulation was

intended to benefit when the law was passed. Congress may, by statute, override prudential standing

ii. Ripeness: Bringing the case too soon Generally

a. The court should not take cases too soon because i. The facts may not have played out ii. Courts don’t want to interfere with other departments

Abbott Laboratories v. Gardner a. There is going to be an injury, be we don’t know what it looks

like or when its going to happen. b. found to be ripe because the drug company needed an answer

now to avoid spending tons of money on repackaging c. “Its basic rationale is to prevent the courts, through …

premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way…. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”

EXCEPTION a. Fitness for JUDICIAL decision

i. Past policy making ii. Agency has brought expertise to bear iii. The only thing to be decided is a question of law

b. Hardship to the Parties by withholding court consideration. i. Costs that are immediate

iii. Mootness (flipside of ripeness) Bringing the case too late

a. Although there may have been a valid case or controversy when the suit was brought, subsequent events have eliminated the complained of effects.

Exceptions (some people say this is a prudential doctrine bc of these exceptions)

a. The voluntary cessation of the allegedly unlawful conduct will not necessarily moot a case

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b. The case is “capable of repetition yet evading review” i. The burden is on the D to show by a preponderance of

the evidence that the allegedly unlawful activity will not recur.

ii. E.g., abortion 3. THE 11th AMENDMENT STATE SOVEREIGN IMMUNITY

a. Limits the jurisdiction of FEDERAL courts over suits against the STATES or “arms of the state.” It is not relevant to suits against States in STATE courts.

i. But general principles of sovereign immunity are relevant to suits against States in state court.

ii. The Eleventh Amendment protection does NOT cover suits against LOCAL governments (cities, towns, etc.)

b. Who CAN sue the states in federal court? i. The United States. ii. “Sister” States.

c. Who CANNOT sue the states in federal court due to the Eleventh Amendment? i. Citizens of other states (express). ii. Citizens of their own states (by court interpretation – “background principle” of

sovereign immunity) (Hans v Louisiana) iii. Citizens of foreign states (express). iv. Foreign nations (by court interpretation – sovereign immunity again). v. Tribes and tribal members (ditto). vi. Local governments are not considered states under this Amendment

d. Stripping Doctrine: no sovereign immunity for State officials & local governments (can be sued in federal court) IF

i. Only nonmonetary remedy is sought. (e.g., injunction) ii. Suit is for violation of FEDERAL law.

e. States may be sued in federal court IF they consent/waive their immunity f. States may be sued in federal court IF Congress has the POWER to

“abrogate/override” the Eleventh Amendment/Sovereign Immunity AND Congress intends to exercise that power. (Congruence & Proportionality)

g. The states have sovereign immunity against their own citizens – Hans v. Louisiana (the reason that it is not spelled out in the Amendment is because it is a given, everyone knows states have sovereign immunity)

4. FEDERAL LEGISLATIVE BRANCH a. Generally

i. McCulloch v. Maryland

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Facts: McCullouch is a cashier president of the federal bank in Maryland who will not comply with the Maryland law taxing Federal Banks.

Arguments: a. Nullification

i. States Argue: powers of the government are delegated by the states, which are sovereign

ii. Court Replies: the people were acting to ratify the constitution, not the states themselves (We The People)

1. “The government of the Union, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”

b. Congress Lacked Authority i. States argue:

1. Fed government has no innate authority, just what it gets from the constitution

2. all details must be expressly given to them ii. Court Replies:

1. Its the nature of constitutions (written in broad strokes)

a. "we must never forget, it is a constitution we are expounding" (opposed to a statute)

2. It’s logically necessary: "General Reasoning" a. correlation b/t length of the constitution

and it being amended (it would be unwieldy)

c. States can still tax under the Necessary & Proper Clause d. “Let the end be legitimate, let it be within the scope of the

Constitution [ultimately tied to an enumerated power], and all means which are appropriate, which are plainly adapted to that end [necessary], which are not prohibited [proper], but consist with the letter and spirit of the constitution, are constitutional”

e. The power to tax involves the power to destroy

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i. “the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress”

b. Necessary and Proper Clause i. Article I, § 8, Clause 18 ii. Necessary

“To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.”

Means: a. Appropriate b. Convenient, c. Useful, d. Plainly adapted e. Essential to another f. Conducive to g. Requisite h. Needful

But Not: absolutely necessary iii. Proper: not prohibited elsewhere in the constitution iv. Analysis

Is there a Legitimate End (Expressly Enumerated Power/Written in the constitution)?

a. No, then the act is unconstitutional. b. If yes, is the end beyond the expressly stated power (Implied

Power)? i. No, the act is constitutional. ii. Yes, the Means must be both

1. Necessary: Plainly adapted, appropriate to, convenient, useful AND

2. Proper: Not prohibited by the constitution 5. THE COMMERCE CLAUSE

a. Art. I, § 8, cl. 3: Congress shall have power to regulate Commerce with (1) foreign Nations, and (2) among the several States, and (3) with the Indian Tribes.

b. Commerce is i. Buying goods ii. Selling goods

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iii. Exchange iv. Trader/barter v. Transportation vi. [communication] vii. Oldest Rule: If it affects or concerns more states that one

c. Production is antecedent to commerce (1880s1936 Congress cannot regulate) i. Indirectly tied to interstate commerce ii. Indirect effect on states can make something invalid iii. Production includes:

Mining Farming Hunting Fishing Manufacturing

a. Stream of Commerce: congress may regulate the product within the stream of commerce [but cannot regulate production or sales] (Schechter sick chicken case, came from out of state, sold from docks in NY)

iv. Congress may Regulate: provide “how to engage” Promote Prohibit (added early 1900s) Even if the prohibition destroys commerce – Champion v. Ames (lottery

case) d. Gibbons v. Ogden (Steam boats in NY and federal licenses)

i. It is commerce among the states if it affects or concerns more states than one ii. Only those things within the state that do not affect other states are excluded. iii. State law struck down iv. Congress uses the Commerce Clause to pass more laws than anything else.

e. Hammer v. Dagenhart (child labor case) later overturned – regulation of goods made by children is really regulation of labor which is not covered by commerce clause

i. Majority viewed this case from the stance of the 10th amendment, couldn’t regulate because the indirect effect was not interstate commerce.

ii. Dissent We’ve already said the regulation of commerce among the states is ok, prohibition and transportation of goods is ok, and when Congress can use their authority is ok.

iii. Congress can decide when to use this power of prohibition because it is merely a “degree of necessity,” which is a legislative power.

f. MODERN COMMERCE CLAUSE

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i. NLRB v. Jones & Laughlin Steel If labor disruption in one place would affect the entire chain of commerce then it affects the stream of commerce and Congress can regulate it.

CJ Roberts switched his vote “switch in time to save nine” Vertically integrated operation single company controls all stages of

production ii. US v. Darby (Overturns Dagenhart) Manufacturing is not commerce, but the

shipment of those goods is, and the prohibition of that shipment is a regulation of commerce

RULE: Congress can regulate other stuff that is not itself interstate commerce if it substantially affects interstate commerce

If the end is legitimate it is up to congress to decide the means iii. Wickard v. Filburn (local wheat farmer case)

RULE: Congress may regulate any (whatever nature, even if local) activities that, in the aggregate (cumulatively), have a substantial economic effect on I.C., regardless if effects on I.C. are direct or indirect.

The Court’s most broad interpretation of Congress’ power to regulate interstate commerce.

The stabilization of wheat is the literal regulation of I.C. The indirect effect is regulation of local activity which is ok because it is a necessary means to create a legitimate end and there is nothing that makes it improper. (The court doesn’t spell it out this way, but this is the analysis)

Aggregation Doctrine: even though a small amount may be involved in an individual case, if it is aggregated with the cases like it, there would be a substantial effect on interstate commerce and that is sufficient.

“But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”

iv. Heart of Atlanta Motel v. US (segregated motels) Motive of the statute irrelevant

a. Race discrimination in housing affects interstate travel of people b. Motive of solving race discrimination justified by regulation

travel Local effects can meet the Substantial Effects Test

a. “if it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.”

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Rational Basis a. “that the means chosen by it must be reasonably adapted to the

end permitted by the Constitution” v. Katzenbach v. McClung (segregated restaurants)

Racial discrimination in restaurant service in the aggregate affects interstate commerce

“But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce.”

a. rational basis test does not have to be compelling, but simply a logical or rational finding. Deferring to congress rationality. you might need to fix this

vi. Lopez (gun free school zone act) Three broad categories Congress may regulate under Commerce

Clause a. The use of channels of interstate commerce

i. Roads, railroads, waterways, airspace, possibly the internet

b. Regulate and protect the i. Instrumentalities of interstate commerce OR

1. Truck lines, airlines, trains, boats ii. Persons or things in interstate commerce

1. Even though they may have come from only intrastate activities

c. Regulate those activities having a substantial relation to interstate commerce, those activities that substantially affect interstate commerce

i. Indirect effects, Wickard, local operations Congress can uphold a portion of the law that is not interstate

commerce if it is an essential part of a larger regulation of economic activity and the regulatory scheme would be undercut by removing that portion

RULE: Under the Commerce Clause, Congress may regulate by using one of the following:

a. Substantial Effects Doctrine: economic activity that has a substantial effect on/impact on/relationship to interstate commerce

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b. Essential Parts Doctrine: Non Economic activity that is an essential part of a larger regulation of economic activity

c. Express Jurisdictional Statement: specific provision within a statute that limits the application of the federal law to interstate commerce.

i. Allows Congress to regulate any activity to some extent

ii. E.g., “A person shall not carry a gun acquired in interstate commerce within a school zone.”

d. If no interstate commerce is found in the statute then the court may look at congressional findings to find a connection to interstate commerce.

i. “not going to pile inference upon inference” ii. “the connection between the activities you

regulate and the substantial effect cannot be too attenuated”

vii. Morrison VAWA Statute

a. Domestic violence is not an economic activity b. Domestic violence is not related to channels or instrumentalities

of commerce. c. No jurisdictional statement

Congress produced findings showing 3.3 billion dollar economic effect a. Disregarded Congress’s use of the “BUT FOR” effects on the

economy b. The relationship is too TENUOUS/ATTENUATED

viii. Gonzalez v. Raich (Medical Marijuana Case from the West Coast) Regulation of illegal markets is still covered by commerce clause Return to Wickard: the growing of marijuana (like wheat) at home for

personal consumption is economic activity Cannot regulate interstate marijuana without regulating home grown

marijuana. (Can’t do one without the other). RULE: Economic activity that, in the aggregate, do have a substantial

effect on interstate commerce OR even if noneconomic activity, regulation is an essential part of Controlled Substance Act (or at least Rational Basis)

The dissent in Lopez and Morrison become the majority. Scalia, Concurring: Necessary & Proper Analysis

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a. Necessary: The prohibition of these goods in I.C. is the legitimate end but goes beyond express power.

i. Appropriate Means: the permeability of medical marijuana requires restriction

ii. Proper: there is no law saying that it is not proper. b. They can therefore do other things that are N&P.

g. COMMERCE TEST HOW TO i. Is there a legitimate end?

If No, unconstitutional If Yes, does the act of Congress go beyond their express power?

a. If No, constitutional b. If Yes, does the act have an express jurisdictional statement?

i. If Yes, constitutional ii. If No, is it regulating economic activity?

1. If Yes, use Substantial Effects Doctrine 2. If No, use Essential Part Doctrine

a. If Essential Parts Doctrine doesn’t work, look at Congressional Findings

ii. Terms Legitimate End: Expressly enumerated power in the Constitution Express Jurisdictional Statement: Specific provision within a statute that

limits the application of the federal law to interstate commerce. a. Allows Congress to regulate any activity to some extent b. E.g., “A person shall not carry a gun acquired in interstate

commerce within a school zone.” Economic Activity: $$ Substantial Effects Doctrine: Economic activity that, in the aggregate,

has a substantial effect on/impact on/relationship to interstate commerce a. Economic Activity b. Substantial

i. Aggregate c. Effect on/ Impact on/ Relationship to

i. Rational Basis: Congress has the authority to determine the degree of necessity for an act so long as it is rationally based

1. “if it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.”

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2. The relationship cannot be too tenuous (Morrison)

d. Interstate Commerce Essential Part Doctrine: Non Economic activity that is an essential part

of a larger regulation of economic activity 6. THE 10th AMENDMENT

a. General: 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.

b. How To: Does Congress have the Constitutional authority to pass the law? (such as N&P/Commerce Clause)

i. No, unconstitutional. ii. Yes, Does the law regulate private behavior or only state behavior (is it

“valid”)? Private, States must comply with the law. State, Is the law Commandeering state’s ability to pass or enforce

laws? a. No, Not a 10th Amendment issue. b. Yes, Law is unconstitutional c. Unless it only uses monetary incentives.

c. Laws of General Applicability i. Valid: Federal Laws commanding state behavior along with similar private

behavior. ii. Applies to everyone (people, states)

Minimum wage laws Civil rights laws Various environmental statutes

iii. States are treated like everyone else and must comply iv. Since 1940 → 10th Amendment has no effect on “valid” federal laws that

“displace/preempt” state regulation of private behavior d. Commandeering Laws (intent)

i. If the Federal Law is: Of general applicability, then the Federal intent that the law applies to

the states must be clear Directed toward States only, and has no private counterpart then:

a. Pass Laws: cannot force states to pass certain laws b. Enforce the Law “Execute”: cannot order state officials to

enforce federal law e. One way to look at 10th Amendment

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i. If a power is delegated to Congress in the Constitution, the 10th amendment expressly disclaims any reservation of that power to the states

Ask: does the government have this authority under the constitution ii. If a power is attributed to a state sovereignty reserved by the 10th amendment,

it is necessarily a power the Constitution has not conferred on Congress Ask: Do the States have the authority?

iii. Congress can’t pass laws that take over the job assignment powers of the state – Printz v. US (state background check law)

f. Cases i. National League of Cities (1976) (overruled)

Four conditions for state activity to be immune The federal statute at issue must regulate states as states The statute must address matters that are indisputably attributes of state

sovereignty State compliance with the federal obligation must directly impair [the

state’s] ability to structure integral operation in areas of traditional government functions

The relation of the State and federal interests must not be such that the nature of the federal interest, justifies state submission.

ii. New York v. U.S. (1992) 63 majority Low Level Radioactive Waste Act

a. Monetary Incentives b. Access Incentives c. The take title provision

i. Waste generated becomes owned by the states UNLESS

ii. States establish radioactive waste dumping ground You can look at these two questions either way: (Printz doesn’t agree)

a. Whether an Act of Congress is authorized by one of the powers delegated to Congress in Article I of the Constitution

b. Determine whether an Act of Congress invades the province of state sovereignty reserved by the tenth amendment.

iii. Printz v. U.S. (state background check law) 54 Souter switched vote The AntiCommandeering Rule comes from

a. History b. Structure of Constitution c. Prior cases (jurisprudence)

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Federal Government may not Commandeer state legislative and executive branches (officers) because:

a. Inherent, residual, inviolable STATE SOVEREIGNTY b. States never gave that portion of sovereignty to the federal

gov’t “The 10th amendment likewise restrains the power of Congress, but this

limit is not derived from the text of the 10th amendment” 7. CONGRESSIONAL AUTHORITY AND THE CIVIL WAR AMENDMENTS

a. Civil War Amendments i. XIII No slavery

Applies to Everyone (Private, State, Local, & Federal) ii. XIV Deprivation, Due Process, Equal Protection

Applies to States & Local Governments (state version of 5th Amendment)

iii. XV Right to Vote Applies to Local, State, & Federal

b. “The Congress shall have power to enforce this article by appropriate legislation” is used, with slight variations, in Amendments XIII, XIV, XV, XVIII, XIX, XXIII, XXIV, and XXVI.

c. Congressional Powers and State Sovereign Immunity i. When a state invokes sovereign immunity, the only way to overrule it is when

Congress abrogates the state sovereign immunity ii. There must be a piece of legislation w/in a statute that gives this authority iii. Instances where SCOTUS upheld Congress ability to abrogate

a. The FMLA case – Nevada v. Hibbs b. The ADA case

BOTH of these cases were brought to force the state to enforce the federal legislation

iv. Why were these two cases allowed? Congruence and Proportionality Test d. Enforcement

i. Enforce: Congress’ Ability to Provide Mechanisms to Force Compliance Prevent/deter constitutional violation AND/OR Remedy constitutional violations Does NOT mean:

a. Contradicting judicial interpretation of the constitution but may include prediction

ii. Enforcement Test Deter/Prevent/Remedy constitutional violation (defined by congruence

and proportionality)

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http://www.google.com/url?q=http%3A%2F%2Fen.wikipedia.org%2Fwiki%2FUnited_States_Congress&sa=D&sntz=1&usg=AFQjCNHV37JxxSCnkJcKqsxhD68SytOEwA


a. Congruence i. Adequate congressional identification of a “relevant”

Constitutional injury, evil, or problem a. Relevant: Correct type of case, e.g.

discrimination for E.P, P&I, Sub Economic Due Process

2. Pattern of STATES violating “relevant” Constitutional Provision (legislative findings)

a. Pattern: widespread (pervasive) (geographical) & persistent (timing, ongoing problem)

b. Proportionality i. Good Fit or “Fix” to the “Problem.” Can’t be overkill

or overeaction iii. HOW TO Enforcement:

Is the Federal Law based on an Amendment with an Enforcement Clause?

a. No, use another analysis. b. Yes, Does it meet the Congruence and Proportionality test?

i. No, the enforcement of the law is not constitutional. ii. Yes, Is the Congressional intent clear that state

sovereign immunity is abrogated? 1. No, 11th Amendment may be valid state

defense 2. Yes, No sovereign immunity defense by states

for this law. e. Civil Rights Cases

i. Aimed at state action, not private action ii. Jones v. Alfred H. Mayer Co.

Congress has the power under 13th amendment (abolition of slavery) rationally to determine what the badges and incidents of slavery are

Refusing to sell a person a home because they are black is a badge of slavery

Anything that is a badge of slavery can fall under the 13th amendment To what extent (how and when) can Congress use it authority under the

14th amendment? iii. City of Boerne v. Flores

Enforcing the law never means declaring the substance (meaning) in defiance of the Supreme Court

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Restoring religious freedom act case about a church building, Congress passed the act as an attempt to overrule the Supreme Court in the Peyote case

Congress does not enforce a constitutional right by changing what that right is. Congress has been given the power to enforce, not the power to determine what constitutes a constitutional violation

a. 11th amendment – State immunity b. 14th amendment – equal protection

iv. Board of Trustees of U of Alabama v. Garret Congress may abrogate the States’ 11th Amendment immunity when it

both unequivocally intends to do so and “acts pursuant to a valid grant of constitutional authority”

State failed to comply with provisions of ADA a. The intent is clear b. Congress has the authority

States are not required under the 14th amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational (rational basis test)

In order to get past the States 11th Amendment immunity, Congress has to rely on § 5 of the 14th Amendment

§ 5 legislation reaching beyond the scope of § 1’s actual guarantees must exhibit congruence and proportionality between the injury to be prevented or the remedied and the means adopted to that end.

v. Nevada Department of HR v. Hibbs Congress enforcing the 14th amendment FMLA gender based discrimination case, have to have time to raise a

newborn Tennessee v. Lane: Due process is the right to be heard, access to the

courthouse is a due process problem, so congress has the authority and it clearly expressed it

Which means remedy &/or prevent (in state action) – Not declaring or interpreting

vi. Rule: Congruence and Proportionality test If the statute really is congruent and proportional, it is really a remedy

and preventive, if really a remedy and preventive, congress is really enforcing it.

a. Record of a Constitutional evil, problem or injury Record of state violations of the constitution

a. There must be a widespread and persistent pattern

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f. Case Synthesis Chart:

g. i. Fair Labor Standards Act

Due Process, protection of property was the argument, but it lost. Discrimination isn’t required for Due Process, only for Equal Protection

a. Substance Ok under Article I substance, b. Enforcement No

ii. Boerne Religious Freedom RA Substance – No, Congress lacked authority Enforcement No

iii. Garret Americans with Disabilities Act Title 1 employment Substance Ok, You can’t discriminate in employment against

disabled based on Art. I interstate commerce is part of the basis, but also on the 14th amendment.

Enforcement Absolutely not enforceable iv. Tennessee v. Lane – ADA Title II,– government entities keep buildings open

and accessible to disabled. Substance based on the 14th amendment, due process (procedural

process right to be heard). Enforcement is also ok under 14th amendment, based on the

opportunity to be heard (based on the private cause of action). v. Hibbs FMLA

Substance Gender Discrimination in employment (equal protection) Substantively on Article I.

Enforcement Ok under enforcement based on the 14th amendment

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h. Whatever Congress does has to be measured in other words, a good fit. Not an overreaction

8. TAXING & SPENDING CLAUSE a. The Congress shall have 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 United States

b. Elements (South Dakota v. Dole) i. Pursuit of General Welfare

The exercise of spending power must be in pursuit of the general welfare. Courts should defer to the judgment of Congress.

ii. Unambiguous If Congress requires a condition to the States’ receipt of federal funds,

it must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation.

iii. Related Federal Interest Condition must relate to the restrictions imposed on federal grants;

might be illegitimate if they are unrelated to the federal interest in particular national projects or programs.

iv. No Independent Bar Other Constitutional provisions may provide an independent bar to the

conditional grant of federal funds. (e.g., law incentivizing discrimination) v. Not Coercive (Health Care Opinion)

In some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion

c. Healthcare Case i. Individual Mandate (every person must purchase health care) (5 yes /4 no)

Is healthcare commerce? No Is it within the taxing power? Yes Is it severable? Didn’t Answer

ii. Mandatory Medicaid Expansion (7 no / 2 yes) The mandatory medicaid expansion was seen as “coercive” and thus

unconstitutional. Economic Dragooning: (False Choice) 20% of state budget would be

lost and there is no real option because the states already rely on the funds

iii. Optional Medicaid Expansion (5 yes / 4 no) the optional medicaid was not found to be “coercive.”

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9. FEDERAL CRIMINAL LAWS (US v. Comstock)

a. Rule: Congress can create criminal law if it is attached somehow to an enumerated power of Congress

i. If Congress can create criminal law → can create prisons → manage and administer the prison system → can regulate release (majority)

ii. Tangible Links: whether there is a connection to an enumerated power depends on the strength of the links in the chain not the length or number of links. (Kennedy, concurring)

b. The Constitution grants congress the authority to enact the law as necessary and proper for carrying into execution the powers vested by the constitution of the US

c. In this case, congress has power to do things for commerce, welfare, and civil rights that would give them the means of creating criminal laws and prisons.

10. THE TREATY POWER a. Assuming the U.S. enters into a valid treaty, what can Congress do?

i. Congress can pass statutes to implement the treaty AND ii. Force the States to comply

b. A treaty cannot be valid if it infringes the Constitution, there are limits. – Missouri v. Holland (Bird hunting treaty between US and Britain (Canada))

11. THE PROPERTY CLAUSE (Kleppe v. NM Burros) a. Congress has Proprietary and Legislative power over federal property, which is

complete/plenary i. Akin to the State’s police power ii. The power of congress over federal lands is without limitations

Sleeping Giant, but Congress hasn’t exercised authority that often. b. Determinations under the property clause are entrusted primarily to the judgment of

Congress 12. PREEMPTION OF STATE LAW BY FEDERAL LAW

a. Generally i. Preliminary Question: only constitutionally valid federal laws may preempt; must

determine that the law is constitutional before addressing preemption

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ii. If the federal law is found to be preemptive, it is the floor, the ceiling, the whole darn room.

b. Express Preemption i. The federal law expressly states an intent to displace state law, on the face of

the federal law. ii. Very rare but it happens. (e.g. cigarette labels)

c. Implied Preemption i. Field Preemption

Congress has occupied an entire field of law. (e.g., patent law?) No room for any state law in that field. “Pervasive Scheme of Federal Regulation”

a. Federal intent was to cover the entire field (be pervasive) b. Not every “gap” in the regulation must be “plugged” c. E.g. Nuclear power safety

“Dominant Federal Interest” a. There is no need for any federal law directly on point b. Simply an area where the federal government rules. (treaty

making, national defense, etc.) ii. Conflict Preemption

Only the parts of the state law that conflict with federal law are preempted

Severability: Is the whole law gutted if parts of a state law are preempted by conflict?

a. Question of whether the state intended the law to survive if the conflicting section is removed

b. May remand or certify to the state “Physical Impossibility”

a. If it is impossible to comply with both state and federal law, federal law remains and preempts state law. (e.g. Kleppe burros)

“Purposes and Objectives” a. State law would, overall, obstruct/frustrate the purposes of the

federal law. b. No pointforpoint head on collision, but the overall federal

purpose is clear, which purpose would be frustrated by state law, state law goes.

c. Happens fairly often (E.g. Arizona state crime to be an illegal alien in Arizona under federal law was a frustration of federal law)

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d. THE “MODERN” DCC (DORMANT/NEGATIVE COMMERCE CLAUSE) i. Generally

Applies to only State and Local government A doctrine used by judges to strike down state or local laws because they

interfere with interstate commerce. ii. Justifications

Economic Theory a. “Economic protectionism, isolationism, balkanization,” is bad. b. Interference with business increases costs and interstate commerce

Political Theory a. The people who are being harmed (outofstate citizens) by the

instate/local law cannot participate in state elections. iii. Cases

Philadelphia v. NJ (NJ had statute that didn’t allow solid waste from other states into NJ)

a. Facially Discriminatory b. Import Bans: are always discriminatory, but not always unconstitutional c. Rule: Protectionism is when a state (or locality) enacts a law to benefit

or protect a state or local business or economic interest at the expense of outofstate business or interest.

Dean Milk Co. v. Madison (City of Madison made it so milk sold in that city had to be pasteurized within 5 miles of the city)

a. Facially Discriminatory b. Rule: even though some of the burden is felt within Wisconsin, ALL of

the benefit was within Wisconsin Hunt v. Washington State Advertising Company (North Carolina passed law

that removed labels from apples) a. Not discriminatory on face but has discriminatory effect b. Rule: the effect of the statute is to remove the economic value of the

good reputation and quality West Lynn Creamery, Inc. v. Healy (MA passes a tax on all milk sellers to MA

companies, then the tax is used to subsidized MA dairy farmers) a. Discrimination in purpose is discriminatory b. The combination of the two is clearly discriminatory c. States can subsidize instate activities or groups, but it has to be from

general revenues (e.g., income tax) Minnesota v. Clover Leaf Creamery Co (All milk had to be sold in paper

cartons instead of plastic bottles.

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a. Even handed statute burdens in state companies and out of state companies alike, doesn’t matter that it burdens specific types of milk manufacturers.

b. Supreme Court ruled ok within Commerce Clause but ignored the trial court’s finding of it being locally discriminatory

c. Quotes Pike v. Bruce Church “where the statute regulates evenhandedly 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 putative local benefits… If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.”

Bibb v. Navajo Freight Lines (An Illinois statute that requires contoured mud flaps on all semitrucks, where 45 states allow straight mud flaps and one requires straight mud flaps)

a. Evenhanded, but there is a massive showing of burden on interstate commerce. Law fails.

MA v Taylor: Maine statute prohibits the import of live baitfish because of a parasite they carry. This parasite is not currently found in local fish. The only known way to keep them out it to not allow live baitfish. The state doesn’t have to come up with new technology or alternative means bc there were no reasonable alternatives available.

iv. ANALYSIS OF DCC LAW Plaintiff shows whether the law is Discriminatory or Even Handed (Burden on

Plaintiff) a. Types of Discrimination

i. On the Face (Dean Milk, Phil v. N.J.) ii. In Effect (Hunt v WA Apples) iii. In Purpose (West Lynn Creamery)

1. Even if the law is not discriminatory, it will still be struck down if the legislature intended it to be.

b. Instate (local) v. out of state (local) i. If the instate parties in an economic sense are being treated

better (benefited, not burdened or burdened less) than the out of state parties (not benefited, or not benefited as much, or burdened more) then the law is discriminatory

Discriminatory Law

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a. (Burden Shifts) State/local government must overcome presumption of unconstitutionality (Burden on State) (virtually per se invalid)

1. Government must show the end (or goal) of the law is a “legitimate” government interest (not so hard to establish)

a. Legitimate means police power i. Public health, safety, or welfare ii. Not economic protectionism

b. Risk must be real but magnitude need not be known (Maine v Taylor)

2. And there are no alternative “means” a. No lessdiscriminatory or nondiscriminatory

means (tough to establish) b. There almost always is an alternative means c. Must be reasonably available

(MA v. Taylor) Even Handed Law (evenly burdensome for everyone)

a. Burden of proof on the challenger for entire case b. Becomes a balancing test between burdens on interstate commerce vs

the benefits of the proponent (an end/means test) i. Burdens must be clearly excessive to the benefits ii. Make a list of burdens on interstate commerce iii. Make a list or quantify “local benefits”

1. Nature of the local interest a. At least a government interest b. Its degree of importance

i. E.g., 200 ingrown toenails vs 5,000 lives annually

2. Alternative Means: could it be promoted with less burden on interstate commerce?

3. Effects on interstate commerce are only incidental a. This means the state cannot project its

legislative will on other states DCC TEST

a. Is the state incidentally or directly interfering with interstate commerce? i. NO. There is no DCC issue. ii. INCIDENTAL. Is the law discriminatory against people

outside the state?

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1. YES. (Discriminatory) Can the State show a “legitimate” (public health, public safety, general welfare) government interest?

a. NO. The law is unconstitutional. b. YES. Are there any reasonably available less or

nondiscriminatory alternatives? i. NO. The law is constitutional. ii. YES. The law is unconstitutional.

2. NO. (EvenHanded) Balancing Test Does the law’s burden on interstate commerce clearly and excessively outweigh the local benefits?

a. YES. The law is unconstitutional b. NO. The law is constitutional.

iii. DIRECT. The state exertion of extraterritorial power is invalid. 1. E.g., A NY state statute says “Once a company has set

its price for sale of widget in NY, then they cannot sell it for less in any other state.”

v. DCC EXCEPTIONS SUBSIDIES

a. Direct subsidies as long as the funds are drawn from the state/local general revenue. E.g. Sales Tax, Property Tax, Income Tax

THE MARKET PARTICIPANT DOCTRINE a. Rule: if the state is acting like a private party, they are allowed to

operate freely in free market without violating the DCC (Reeves) i. May not act as a market regulator (Wunnicke) ii. Factors showing regulation

1. restraint on foreign commerce 2. natural resources involved 3. downstream restriction

b. Cases i. Reeves, Inc. v. Stake cement plant in SD owned by SD, that

acts like every other cement plant. It can choose to discriminate if it wants.

ii. SouthCentral Timber Development v. Wunnicke Alaska sells timber but only if it is processed by Alaskan mills before export

vi. STATE/GOVERNMENT INTEREST – HOW DO WE KNOW Realize that there are different tests for “Ends” and “Means,” and gov’t

interest can show up in either tests.

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There are several different gov’t interest tests Depending on what type of issue it is (DCC, equal protection, contracts

clause, substantive economic due process, P&I, etc..), the gov’t will take different approaches to find out if it is a legitimate interest.

The court cannot get away from looking at the “government interest/purpose”

Government interest = legislative purpose a. Always look at the overall institution’s purpose, not individual

legislator’s purposes Approaches for determining gov’t interests:

a. Order of magnitude of interests least to most: Legitimate (permissible); significant; substantial/important; compelling (strict scrutinynext semester)

Levels of Government a. All Admissible: the Court considers all admissible and relevant

trial evidence, apply burden of proof, make the decision i. This approach tells you who has the better attorneys ii. Neutral approach

b. Deference: the Court “defers” to legislative discretion i. If there is some, more than a “scintilla,” of evidence in

the record, then it’s “legitimate” ii. This approach misses the mark most of the time iii. Progovernment approach, allows for expost fact,

adhoc rationalization c. Relevant to Enactment: the Court considers only the trial

evidence relevant to original passage/enactment of the law i. This approach looks for the actual purpose of the law ii. Neutral approach

vii. Kassel Case (how a judge determines how to establish government interest) Plurality opinion (4 votes)

a. Judge [or jury] will rule based on the weight of all the trial evidence

Concurring in the judgment opinion (2 votes) a. Dig around the legislative history to try to ascertain the actual

purpose of the law at the time it was passed Dissent opinion (3 votes)

a. When a state law under legitimate government interest i. Analyze the evidence only to detect pretext

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ii. If the is any (more than a scintilla) you must find in favor of the state

e. PRIVILEGES AND IMMUNITIES i. Article 4, Sec. 2, Cl. 1 “Citizens of each state shall be entitled to all Privileges

and Immunities of Citizens in the several States” ii. Amend XIV, Sec 1: “No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States…” iii. Similarities with the dormant commerce clause

Really old Limits State and Local government, not the Federal government Both triggered by state/local discrimination against outofstate citizens The State may raise an eleventh amendment defense (Sovereign

Immunity) iv. Differences with the dormant commerce clause

P&I: a. Covers many noneconomic areas such as:

i. Provisions of essential government services ii. Access to courts iii. Freedom of speech and religion iv. primary and secondary education may be a PI

1. Higher Education Is NOT a PI b. Only covers the very essential economic activity of “pursuit of

common calling” or “seeking a livelihood” c. Cannot claim P&I against own state d. No market participant doctrine e. Congress does not have ability to authorize anything that

violates P&I clause http://www.youtube.com/watch?v=4_aN6AzBH9M

v. Difference between Article 4 and 14th amendment: If there is new/recent instate residents who are subject to

discrimination by the state because they are new, those new residents may be able to sue under the 14th amendment version, not Article 4

vi. Test Is there an infringement of a Privilege or Immunity by a state or local

government against a citizen of a different state? If so, the law is unconstitutional UNLESS the State justifies it by

showing that there is: i. A substantial reason for treating out of staters differently

(substantial is more than legitimate), AND

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http://www.youtube.com/watch?v=4_aN6AzBH9M


ii. The discrimination bears a substantial relationship (close connection) to the state’s reason.

f. SUBSTANTIVE (V. PROCEDURAL) “ECONOMIC” DUE PROCESS i. 14th Amendment & 5th Article: cannot deprive a person of life, liberty, or

property without the due process of law ii. Application

Any law that restricts a person’s substantive right to economic due process

a. Examples: freedom to contract, to compete Applies to laws passed by government including:

a. Local b. State c. Federal

iii. Modern Substantive Economic Due Process Test (1938US v. Carolene Products)

The Law is presumed to be valid True Rational Basis Test

a. Lowest level of scrutiny b. (Ends) Any possible, hypothetical, conceivable legitimate

government interest, AND c. (Means) If the means have any relationship to the interest , then

the law is good iv. Strict Scrutiny

Footnote 4: Court gives examples of cases where they will use more exacting scrutiny [strict scrutiny] (voting cases, freedom of speech, freedom of the press, race discrimination).

v. Cases Lochner (baker)(1905) liberty to contract recognized, “necessary and

appropriate” US v Carolene Products (fat in milk) (1938) decreased standard that

government must meet to rational basis Lee Optical (prescription for glasses) (1955) upheld Carolene

a. ANY conceivable/hypothetical/possible/speculative Legitimate Gov Interest

g. THE CONTRACTS CLAUSE i. Art. I Section 10: “No State shall enter into any Treaty, Alliance, or

Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts;

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pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”

ii. Applies to: state local governments

iii. Preliminary Requirements Plaintiff must have a valid existing contract The contract must be substantially impaired

iv. Burden of Proof Initial Burden is on the the plaintiff Shifts to the State to establish that the impairment is justified.

v. Test for justified impairment – Ends/Means test (Ends) There must be a significant and legitimate public purpose

a. Significant: higher than legitimate but less than important, substantial, and compelling

b. Public: society at large must have something at stake. (Means) Really rationally related to the significant and legitimate public

purpose by showing: a. It is a reasonable impairment b. Really reasonable relationship

If the government meets this test, the Contracts Clause is not violated. vi. If the state attempts to impair its own contracts:

Test: a. (End) There must be an important (higher than significant) and

legitimate public purpose AND b. (Means) No alternative means: The state must use other means

of addressing this purpose if they are reasonably available. vii. The courts are unlikely to find a violation of the K Clause when a state or local

government changes the law in an area where a type of business or industry is heavily regulated.

h. EXECUTIVE BRANCH i. Executive Order

Very little weight ii. Federal Agencies

Regulations a. QuasiLegislation: the regulations elaborate on the statute

Administrative Appeal a. QuasiJudicial: administrative law judges make rulings that may

be appealed to higher courts

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US v. CurtissWright Export a. We have authority in foreign affairs with full sovereignty because

we are a nation, not because of the Constitution b. “The broad statement that the federal government can exercise

no powers except those specifically enumerated in the Constitution, and such implied powers and necessary and proper to carry into effect the enumerated power, is categorically true only in respect to our own internal affairs.”

i. EXECUTIVE DOMESTIC POWER (Steel Seizure Jackson Concurrence) i. Highest Maximum Power

Express OR Implied Congressional Consent/Approval Combination of Article I (congress) AND Article II (executive)

authority But...Even when congress and executive agree they may not act beyond

their constitutional authority ii. Middle Zone of Twilight

Congressional Silence Only Article II (executive) Depends on the factual conditions Acquiesce Doctrine (Frankfurter’s Dissent)

a. When Congress is silent while the President acts b. THEN it becomes implied congressional consent moving it to

Highest level of power iii. Lowest Ebb of Power

Express OR Implied Congressional Denial/Disapproval Article II (executive) MINUS Article I (congress) authority But...The executive may still have the power under Article II

a. If the courts disable congress iv. Famous Quotes

But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely…pg 386

There are indications that the Constitution did not contemplate that the title CommanderinChief of the Army and Navy will constitute him also CommanderinChief of the country, its industries and its inhabitants.

13. EXECUTIVE INTERNATIONAL POWER a. General: domestic authority test now applied to international authority b. Treaties (Medellin v. Texas)

i. Self Implementing

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Congress may add laws but no Act of Congress is required to become domestic law

ii. Non Self Implementing Need an Act of Congress to become domestic law

c. EXECUTIVE PRIVILEGE & IMMUNITY i. Executive Privilege

Source of Executive Privilege a. There is no express executive immunity in the Constitution b. The nature of having an executive creates executive immunity

and raises c. Constitutional underpinnings

Analysis a. Is the President’s claim of privilege subject to judicial review

(nonjusticiable political question)? b. Does the President have any privileges against disclosure of

executive communications made while in office? i. Types of privileges asserted in United States v. Nixon:

1. Absolute any communication the President has with his advisors while in office is absolutely immune from disclosure

a. Need for Candid advice b. Separation of powersjudicial subpoena

ineffective as directed to the Executive Branch

2. Qualified the “presumptive privilege” for Presidential communications outweighs the need to respond to a thirdparty subpoena in a criminal case

3. Military, Diplomatic, or National Security secrets there might be a viable claim for absolute privilege

ii. Considerations for executive privilege 1. Criminal not civil subpoena 2. Judicial, not congressional subpoena 3. No claim of state secrets, national security, or

military secrets iii. Court denies claim for absolute privilege

c. Balancing test;

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i. First: Look at the reason for the privilege (apply to subject matter & who’s communicating)

1. E.g. Need to ensure separation of Powers, and need for the President to receive candid advice from advisors

ii. Second: Look at why not to recognize privilege (apply to subject matter & who’s communicating)

1. E.g. Need for justice in Criminal proceedings Under Article III

iii. Third: Forum of disclosure 1. In chambers, to a judge, (in camera review)

ii. Executive Immunity President is absolutely immune from civil damages claims based on

official actions taken while in office. (Nixon v Fitzgerald) a. Distraction by suits of the President b. President is an easy target high visibility, effect on many

people c. Cites the possibility that President will be dissuaded from taking

some official action because of the possibility of such suits d. Checks on the President impeachment, press, Congress,

legacy Dissent in Fitzgerald asks for qualified immunity for behaviors on a case

by case basis A sitting President is not immune, for the duration of his tenure in office,

from suits for civil damages based on conduct occurring before he took office. (Clinton v Jones)

iii. Covers those acts while the president is office that are official acts of the president

Courts construe official acts to the outer limits of the duties of the position of president

The immunity lasts forever iv. Does not cover acts before being president, after. Or acts during presidency if

they are not official acts Though if called into court for one of these the courts will be very

accommodating to the president’s busy schedule d. WAR POWER

i. Congress Declares War. (Expressly in the Constitution)

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ii. President acts without prior official declaration of war, but Congress has preauthorized or ratified after the fact. (The latter is an alternative holding in the Prize Cases; if Congress can ratify, it can authorize!)

iii. President responds to invasion or insurrection. (This is the more famous part of the Prize Cases; btw the Court said that not only did the President have the authority to do this, he had the DUTY to do this.)

Protection of U.S. Citizens (life) wherever they may be. Protection of U.S. property wherever it may be. (Typically thought to

be okay sometimes, but may depend on the magnitude of the problem.) Protection of “vital national security interests.” (Probably might be

consensus on this IF there were agreement on what was “vital”; but disagreement on that, plus the fact that usually Presidents do not disclose what the interest is, causes there to be some hot debate, here. There are suspicions that Presidents tend to think that just about everything is covered under the umbrella of “national security”; a handy way to expand their authority.)

BTW, Presidents USE not only 1, but also 2 and 3 frequently iv. Commitment of military forces pursuant to a “Collective Security Agreement”

(e.g., NATO). (Think about it – in these instances the Senate has APPROVED the agreement, so, in a way, the President isn’t acting unilaterally at all when the President acts pursuant to the agreement.)

v. Some, if not most or all, recent Presidents have claimed that as Commander in Chief and in light of CurtisWright they can just do what they want as far as military affairs, period. (Some of them rather notably did not think so BEFORE they became president!) Aside from their advisors (whether in the administration or after the fact; when you count them up over the years there are a bunch of folks in this group), most experts do NOT think such an absolutist position is valid. (No “Imperial” Presidency…)

vi. The above does not address thorny issues such as detentions and military tribunals, a whole related but different sticky wicket. The only issue covered above is, as stated, “use of force/ commitment of the military in a hostile engagement”. Nor does this address the “War Power Resolution” which Congress passed decades ago and NO President has acknowledged as valid.

vii. From Clukey’s WAR AND FOREIGN EMERGENCIES

a. How we know we are at war – Prize cases i. Declaration of war by Congress ii. Response to invasion or insurrection OR iii. Congressional ratification

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b. Other ways to get into war without the above i. Response to:

1. Attacks or injuries to US citizens abroad 2. Damage to US property abroad 3. Threat to vital US security interests 4. Pursuant to collective security agreement

(NATO/UN) e. THE (NON) DELEGATION DOCTRINE

i. When congress delegates power to the President, it can provide him more discretion regarding foreign affairs than would be the case in domestic affairs

ii. If the statute is so vague that the federal agency doesn’t know what to do, that is a violation of the delegation doctrine…

iii. Intelligible principle If it establishes a rule going on, the statute has to make clear which

agency enforces it and interprets it. Agency should fill in the details, not have to decide what they are

supposed to do. f. THE SOCALLED “LEGISLATIVE VETO” (return)

i. “Single WellConsidered and Finely Wrought Process” ii. Bicameral

Both houses must approve laws iii. Presentment

Art I, § 7, Cl. 2 of the Constitution outlines federal legislative procedure by which bills originating in Congress become federal law.

The President has the power to veto laws, not Congress (pass a law fools)

iv. The Framers’ decision that the legislative power of the Federal government be exercise in accord with a single, finely wrought and exhaustively considered procedure.

g. THE LINE ITEM VETO i. The only way you can veto laws is how the Constitution spells it out

EXECUTIVE PRIVILEGE Hierarchy of questions on exam:

1. Marbury v. Madison 2. McCulloch v. Maryland 3. Steel Seizures

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a. Youngstown Sheet & Tube Co. v. Sawyer (1952) For the IRAC essay question, it will be about congressional authority. Everything that is in Roman Numeral III is what this will be tested on. N&P, Commerce Clause, 10th amendment...so on… Essay question should take the longest, but most of the points come from the short essay stuff. Exam Answer approach:

1. Step 1: What level of government is trying to pass or enforce the law? a. City or local government b. State c. Legislative branch (Congress) d. Executive branch e. Judicial branch f. Sub Step: What part of the constitution gives them that power? (or are they usurping

the power from someone else?) 2. Step 2: Who are they trying to pass the law against? (another branch, a state or

individual) a. Sub Step: does the plaintiff have standing? or is it moot?

3. Step 3: What’s the real reason they are trying to pass or enforce the law? Another Approach to constitutionality of a statute:

1. is it a state action? 2. Article III case or controversy requirements?

a. standing b. ripe, not moot, c. not political question

3. is there 11th amendment immunity? 4. Does the state have power to act?

a. (generally from 10th amend; health, safety, general welfare) 5. Are there any preemption issues?

a. (even if only a state statute, does it cover area where the federal government regulates the area)

6. Does the state place an undue burden on interstate commerce? RULE STATEMENTS Necessary & Proper Clause: Congress may pass laws that go beyond the enumerated powers of Art I, Section 5 as long as the act is necessary (appropriate to, not absolutely necessary) and proper (not otherwise prohibited by the Constitution).

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Commerce Clause: Congress may regulate any economic activity that has a substantial effect on interstate commerce. Taxing & Spending: Congress may promote the general welfare through an unambiguous incentive that is not independently barred by the constitution, does not impose unrelated conditions, and does not coerce compliance. Adequate & Independant Doctrine: where the decision of the state court is deemed to rest upon a nonfederal ground which independently and adequately supports the state court judgment, the Supreme Court will not exercise jurisdiction to review. STANDING Injury in fact An invasion of a legally protected interest which is concrete and particularized, and actual or imminent Causation There must be a connection between the injury and the conduct complained of, the injury must be fairly traceable to the conduct of the defendant and not to independent action of some third party not before the court Redressability It must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable outcome. POLITICAL QUESTION A textual demonstrable constitutional commitment to an issue to a coordinate political department Or the lack of judicially discoverable and manageable standards for resolving it Or the impossibility of making a decision without an initial policy determination of a kind clearly for nonjudicial discretion Or the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government Or the unusual need for unquestioning adherence to a political decision already made Or the potentiality of embarrassment from multifarious pronouncements by various department on one question. 10th AMENDMENT GENERAL APPLICABILITY IMMUNITY The statute at issue must regulate the states as states The statute must address matters that are indisputably attributes of state sovereignty

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State compliance with federal obligations must directly impair the states ability to structure integral operations in areas of tradition government functions The relation of state and federal interest must not be such that the federal interest justifies state submission. 14th AMENDMENT ENFORCEABILITY POWER Power to enforce means the power to prevent/deter or remedy State Constitutional violations To decide if something is preventative or deterring must apply the congruence and proportionality test Congruence means there is an adequate congressional record of a constitution injury, evil, or problem Injury, evil or problem means that the States are violating the Constitution Adequate record means there is a widespread and consistent pattern of constitutional evil Widespread means it is not just one state, but across the states Consistent means it is still going on. DISCRIMINATORY LAW Government must show the end of the law is a legitimate government interest And there are no alternative means EVENHANDED LAW Burden of proof on challenger Balancing test List or quantify benefits Nature of local interest At least a government interest and the degree of its importance Whether it could be promoted as well with less burdens on interstate commerce And the effect on interstate commerce are only incidental PRIVILEGES AND IMMUNITIES If there is an infringement of a privilege or immunity The law is unconstitutional unless the State justifies it by showing there is: A substantial reason for treating out of staters differently, and The discrimination bears a substantial relationship to the state’s reason CONTRACT CLAUSE JUSTIFIED IMPAIRMENT

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State must establish impairment of K was justified Ends/Means test There must be a significant and legitimate public purpose The means chosen must be reasonably related to the significant and legitimate public purpose in 2 senses The degree of fit must be more than a rational relationship The impairment of the K, itself, must be reasonable – not too harsh given the circumstance CONTRACT CLAUSE JUSTIFIED IMPAIRMENT OF STATE K The law must further an important and legitimate public purpose The statute must use other means of addressing this purpose if they are reasonably available MODERN SUBSTANTIVE DUE PROCESS TEST True rational basis test Any possible, hypothetical, conceivable legitimate government interest, and If the law you pass has any relationship of the means to the law to that interest, then The law is good Rational basis with bite Rationally related to any real legitimate government interest. AUTHORITY OF EXECUTIVE BRANCH ANALYSIS When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he posses in his own right (Art II) plus all that Congress can delegate (Art I). When the President acts in absence of either congressional grant or denial of authority (congressional silence), he can only rely on his own independent powers. When the President takes measures incompatible with the expressed or implied will of Congress, his powers are at its lowest ebb, for then he can rely only upon his own constitutional powers (Art II) minus any constitutional powers of Congress (Art I) over the matter. DETERMINING WHAT WHO IS AN OFFICER Multifactor balancing test Is the officer removable by higherranking official that is lower than the president? Limited duties

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Limited Jx REMOVAL TEST Court judgment on a casebycase basis If the person is essential to the president doing his job, then he is terminable at the will of the president If the person is not essential to the president doing is job, then he is protectable by congress with a for cause termination protection.

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Constitutional Law I Outline...2013 SPRING CONSTITUTIONAL LAW I KELLEY Hauled into court not because...

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Transcript of Constitutional Law I Outline...2013 SPRING CONSTITUTIONAL LAW I KELLEY Hauled into court not because...