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Overview Federalism: system of gov’t under Constitution where both the Fed & States operate as

distinct, independent sovereigns Supremacy Clause of Art. VI: federal law trumps state law

SCOTUS | Judicial BranchMarbury v. Madison | Art. II § 2: Power to decide cases & controversies arising from constitution (ceiling, not floor)oDiscretionary decisions of executive are not reviewed by SCOTUS (e.g. mere political

acts) oActs of both Congress and executives are reviewable, & SCOTUS decides if political

question existsMartin v. Hunter’s Lessor | Art. III: SCOTUS has authority to exercise appellate review of state court decisions on questions of federal law (both civil and criminal) oCohen v. Virginia | extended Martin ruling to cases where the state itself was a party

Justiciability Questions: if the federal courts lack the constitutional authority under Article III to decide itoAdvisory Opinion: opinion in a court dispute meeting either of the two criteria:

(1) the legal dispute is “abstract,” lacking an actual, concrete proceeding between adversarial parties; or

(2) the court’s decision will have no binding legal effect. Standing: To establish standing, a litigant must satisfy three distinct requirements.

o (1) suffered an ‘‘injury in fact’’—an invasion of a legally-protected interest that is both (a) concrete and particularized, and (b) actual or imminent, not merely conjectural or hypothetical;

this can include a clear threat f prosecution if person fails to comply with statute; injury in fact exists

o (2) there is a causal connection between her injury and the conduct complained of—that is, her injury is ‘‘fairly [traceable] to the challenged action of the defendant, and [not] the result [of] the independent action of some third party not before the court’’; and

o (3) Redressability: it is ‘‘likely,’’ as opposed to merely ‘‘speculative,’’ that her injury will be redressed by a favorable decision from the court.

Lujan v. Defenders of Wildlife | a party does not have standing to litigate a generalized grievance against the government in federal court if she suffered no personal injury other than the harm suffered by all citizens.Massachusetts v. Environmental Protection Agency | For standing to be appropriate, an actual case or controversy must be present, which is characterized by a truly adversarial relationship.

Ripeness: unripe when the alleged injury remains merely “hypothetical” or “conjectural.” Brought too soon or not sufficiently imminent. Could be a function of both proximity in time or certainty of the injuries

Mootness: case is moot where one of the components necessary to standing has disappeared during the course of the lawsuit, e.g. settlement, death, change in law. Actual controversy must be before the court at all times

Exceptions to Mootness and Ripeness:

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1. Capable of repetition yet evading review (i.e. pregnancy and abortion – can be pregnant again)

2. Voluntary cessation of alleged behavior by defendant (because defendant is free to resume behavior)

Political Questions: a question invested in the political branches to resolve rather than the judiciaryo Issues committed by Constitution to another branch of government, oro Inherently incapable of resolution and enforcement by judicial process

Doctrine of “adequate and independent state grounds”: principally concerns the subject matter jurisdiction of the federal courts, but it intersects with the prohibition on advisory opinions.

Adequate: even if the federal grounds are wrongly decided, it wouldn’t affect the outcome of the case

Independent: interpretation of state provision wasn’t based on federal case law interpreting a federal provision

Political Restraints on SCOTUS: can be “controlled” by

CongressoBudget and appropriations oSize of the Supreme Court &

Impeachments

oConstitutional amendments President

oExecutive control over judicial enforcementoAppointing Justices

Article III weapons: congressional discretion because of authority to create inferior courts and define appellate jurisdiction of such courts (Exceptions Clause)Ex Parte McCardle | Art. III: gives Congress full power to regulate and limit SC’s appellate jdx, but

Congress may eliminate specific avenues for SC review as long as it doesn’t eliminate all avenues

Congress must permit jdx to remain in some lower federal court Congress can’t deny all SC review of an alleged violation of constitutional rights or deny

hearingUS v. Klein | legislative branch may not impair or direct the exclusive powers of the judicial/executive branchesoCase should be compared to Ex Part McCardle in that Congress cannot make “rules of

decision” for SCOTUS; statute must be neutral in accomplishing an objective (not against a specific person)

Congress | Legislative BranchNecessary & Proper Clause: grants Congress power to make all laws necessary and appropriate for carrying into execution any power granted to any branch of the federal government, except prohibited by Constitution

McCulloch v. MA | congress has power to charter banks since that power is appropriate to execute Congress’s enumerated powers to tax, borrow money, regulate commerce, etc.

Taxing Power: Congress has power to lay and collect taxes, imposts, and excises, but must be uniform in every

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NFIB v. Sebelius | tax is based on its function (vs. a penalty)Spending Power: may spend to provide for common defense and general welfare [Art. I, § 8]

Conditional Spending Requirements (South Dakota v. Dole) – must be presented with genuine choice In furtherance of GENERAL WELFARE | textual requirement Clear statement of the obligation and its terms - UNAMBIGUOUS| nature of a contract Must be GERMANE to the federal interest | rather loose standard NOT COERCIVE | allusion: importance of voluntary nature; evaluate including % of funds

withheld Cannot induce unconstitutional action by states | unless states enter voluntarily

Commerce ClauseCongress may regulate only three broad categories of activities:

a. the channels of interstate commerce; b. the instrumentalities of, or persons or things in, interstate commerce; and c. activities that substantially affect or substantially relate to interstate commerce.

a. Whether regulated activity is economic or commercial in natureb. Whether Congress made findings regarding the regulated activity's effect on

interstate commercec. Whether connection between regulated activity and interstate commerce is

"attenuated"d. Whether the challenged provision regulates in a field in which states have

historically been sovereigne. Whether the challenged provision is an essential component of a broader

regulation of economic activityi. If so, this would render the provision "necessary and proper" to that broader

scheme, which itself falls within one of Lopez's categoriesf. Whether state contains a so-called "jurisdictional element"

i. Properly understood, a jurisdictional element merely further defines the regulated activity

ii. With that definition, we are still left with question whether activity falls into one of Lopez's categories

Wickard v. Filburn | Congress can regulate local activity if it exerts substantial economic effect on interstate commerceHeart of Atlanta Motel | Congress had found that racial discrimination burdened interstate travel by making it difficult for African Americans to travel, and thus impeded interstate commerceKatzenburg v. McClung | The Civil Rights Act covers a restaurant when either (a) it serves or offers to serve interstate travelers, or (b) “a substantial portion of the food which it serves . . . has moved in commerce.”US v. Lopez | Congress may not, pursuant to its Commerce Clause powers, pass a law that prohibits the possession of a gun near a school – defined the three broad categories of Commerce ClauseUS v. Morrison | Congress does not have the authority under the Commerce Clause to regulate violence against women because it is not an economic activity; failed “Substantial effects test” Gonzales v. Raich | Congress may regulate the use and production of home-grown marijuana as this activity, taken in the aggregate, could rationally be seen as having a substantial economic effect on interstate commerce.

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Anti-Commandeering Principle: Limit on Congress's authority to direct the states to enact, implement, or enforce federally prescribed rules (grounded in 10th amendment, but really a structural principle of federalism)

- Not commandeering if Congress is subjecting states to generally applicable laws (for both gov’t and private individuals)

State Sovereign Immunity: Limit on subjecting states to lawsuits (often from 11th amendment, but its broader)

NY v. US | Congress may not compel states to enact or administer a federal regulatory program.Printz v. US | anti-commandeering policy applies to local governments, states, and to executive authority; can’t make officers enforce a scheme but can make recommendations

Equal State Sovereignty Principle: Absent exceptional justification, Congress cannot single out a subset of states for differential treatment, forcing them to endure significant burdens not borne by other jdx

- To depart, there must be a showing that statute's disparate geographic coverage is sufficiently related to the problem that it targets

Shelby v. Holder | Supreme Court invalidated Section 4 of the Voting Rights Act, which contained "coverage formula" determining which jdx are covered by Section 5, which hasn’t been updated since 1972

Congress has no general police power (e.g. power to legislate for health, welfare, morals, etc. of citizens), except for District of Columbia13th Amendment: does not protect a broad range of fundamental rights, but instead addresses a much narrower matter: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”14th Amendment: § 5 thus grants Congress the authority to enact “appropriate legislation” to “enforce” the prohibitions spelled out in § 1.- must be “congruent” and “proportional” to constitutional violations that Congress seeks to

remedy or prevent

President | Executive Branch

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Youngstown | unconstitutional presidential executive order to seize steel mills based on national emergency because of the Korean conflict. Justice Jackson’s dissent is law: 3 categories

Category 1: president's authority at apex | clear authorization from CongressPrevious relevant cases: Lopez (tried to enforce gun act); Raich (expressly authorized to

enforce)- Underlying statute impermissibly exceeded power

Category 2: congress did not authorize or forbid | "twilight zone" Category 3: power at lowest ebb | defies Congress

When the president takes measures incompatible with the expressed or implied will of congress

- e.g. Bush administration: secretly wiretapping- e.g. Reagan administration: secret funding of the contra rebels in Nicaragua in

1980sCan be constitutional where the power is left to the president exclusively

In response to Jackson's 3 categories, Dames & Moore v. Regan put it as a spectrum instead since it's not so clear cut.

Recognition Power: Art. II, § 3; President shall receive Ambassadors and other public ministers; grant formal recognition to foreign sovereigns

US v. Curtiss-Wright Export Corp. | President only has power to recognize legitimate foreign power, but Congress can still “check” this power

Pardon Power: Art. II, § 2; can pardon federal criminal offenses, except impeachments – can be granted prior to conviction, not commission– reprieve is a reduction in sentence

Presidential Immunities: Nixon v. Fitzgerald | President is absolutely immune from any damages liability for official acts- President is not immune from suits seeking injunctive or declaratory relief; such suits are

against government - President is not immune from civil actions for damages for based on actions taken prior to

assuming office- Has not been resolved whether sitting president could be charged with criminal offense

Nondelegation Doctrine: runs afoul when Congress gives away too much of its authority, authority that the Constitution requires Congress itself, and no one else, to exercise.

Whitman v. American Trucking Ass’n | Congress must set down “an intelligible principle” in the statute to guide the executive branch’s execution of the law.- depends on degree of discretion conferred on the executive branch & nature or scope of

the power at issue- the greater the power delegated, the more specificity required

Why does Congress delegate?o Time : Congress lacks sufficient time to write statutes that specify in minute detail how

extraordinarily complex regulatory programs are to be administered.

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o Expertise : Members of Congress are generalists (although they hire some specialists), whereas agencies are filled with expert civil servants whose careers are devoted to the subject at issue; it can make more sense for experts to fill in details than for Congress to do so.

o Flexibility : Broad delegations can be interpreted differently over time as technology and knowledge evolves; this permits flexibility, avoiding the problem of freezing regulation to the state of knowledge at the time a statute is enacted.

o Political cost-shifting : Members can take credit for addressing problems without making the tough political calls necessary in detailed implementation.

Legislative Veto: an unconstitutional statutory provision that permits Congress (or part of it) to block a particular act of implementing a federal law without following the exact, constitutionally specified procedures for enacting legislation. Enacting a new law requires complying with “presentment” and “bicameralism”

INS v. Chadha | Legislation providing Congress with a veto over an action of the executive branch does not meet the 2 constitutional requirements of presentment and bicameralism.

1. Bicameralism: every bill, order, resolution, or vote, to become valid federal law, must pass both the House of Representatives and the Senate.

2. Presentment: Art. 1, § 7: every Bill passed by the House of Representatives and the Senate shall be presented to the President before becoming law.”

oClause 3 provides that “every Order, Resolution, or Vote to which the Concurrence of the Senate & House of Reps may be necessary (except questions of Adjournment) has to be presented to the President”

Alternatives to Legislative Veto:o (1) reject agency decisions through

enactment of new laws; o (2) enact more detailed legislation in the

first instance; o (3) conduct oversight hearings (in

committees and subcommittees) that apply pressure to executive branch, communicating the manner in which Congress would like to see the laws implemented;

o (4) include sunset provisions in statutes, such that laws will expire on a certain date and continue in force beyond then only if Congress reenacts them;

o (5) choose not to fund the enforcement of certain rules or regulations;

o (6) threaten agencies with budget reductions;

o (7) call press conferences; and o (8) Members can lobby and informally exert

political pressure.When can Congress act unilaterally?

oArt I, § 2, Cl. 5: the H.o.Reps - the power to impeach; oArt. I, § 3, cl. 6: Senate - try all impeachments; oArt. II, § 2, cl. 2: Senate - give its advice and consent on presidential appointments; oArt. II, § 2, cl. 2: Senate - ratify all treaties;

and more concerning the internal operation of the Legislative Branch, like judging the qualifications of fellow members, the H.o.Reps’ choosing its Speaker & each house determining its rules of proceedings

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Line-Item Veto: authority of the executive to veto specific line items within a broader statute. (unconstitutional)

For example, suppose the legislature passes a bill containing 378 distinct programs (or line items). A line-item veto permits executive to veto some of those specific programs without rejecting the bill in its entirety.Line-Item Veto (LIV) v. President’s Signing Statement (PSS)

1. LIV means that certain provisions would not be made into law, while PSS would be signed into law, but the President just won’t enforce or observed by President

2. PSS alerts the public that the President doesn’t agree with certain provisions while LIV grants President the power to eliminate any provisions without reason

Appointment | Art. 2, § 2, Cl. 2 - President has the power to execute laws (via Take Care Clause) with appts

1. Who is an “Officer of the US”: any appointee exercising significant authority pursuant to the laws of the US.

- Anyone who exercises more than a trivial degree of discretion in execution, enforcement, or application of federal law.

- By contrast, people only performing ministerial duties—who have no meaningful discretion in implementation of fed law—are “employees” or “mere functionaries,” & not governed by Appointments Cl.

- Members of legislative branch are not “officers of the US” under the Appointments Clause. (Senators, Members of House of Reps, and any persons hired to help them carry out their legislative responsibilities)

2. Superior v. Inferior OfficerMorrison v. Olsen | factor test for Superior v. Inferior officers:

1. Subject to removal by a higher level executive branch official? If so, it’s in favor of her being an inferior officer.  

2. Only empowered to perform limited duties, or more broadly empowered to formulate policy for the executive branch? The broader the policy role for the officer, the more likely she is superior. 

3. Is the officer’s office limited in its subject matter jurisdiction? Again, the broader the subject matter, the more likely the officer will be considered superior.

4. Is the officer’s tenure limited in duration? A limit on the length of time of the office’s existence militates toward the officer being inferior.

- Superior officers can only be appointed by President with advice and consent of Senate

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- Inferior officers: President alone, court of law, or heads of departments (e.g. DOA by Attorney General)

o Heads of Depts include: Dept. of State, the Dept. of the Treasury, the Dept. of Defense, the Dept. of Justice, the Dept. of the Interior, the Dept. of Agriculture, the Dept. of Commerce, the Dept. of Labor, the Dept. of Health and Human Services, the Dept. of Housing and Urban Development, the Dept. of Transportation, the Dept. of Energy, the Dept. of Education, the Dept. of Veterans Affairs, and the Dept. of Homeland Security.

o Congress can’t play a role in the execution of law (by appointing members)Removal: Art. II, §2, cl. 2Myers v. United States | A statute that required any sort of congressional consent to the removal of an officer (other than through the process of impeachment and conviction) would be unconstitutional.

Humphrey’s Executor | Under Federal Trade Act, President could remove a commissioner from office only “for inefficiency, neglect of duty, or malfeasance in office.”

Morrison v. Olsen | Question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.

2 factors: (1) the importance of the officer on whom the removal limitation has been imposed; and (2) the substantiality of the limitation

In Morrison, the removal for “good cause” is permissible because the president still has ample authority to remove independent counsel through Attorney General

Structural Limits on StatesState officials only have a political, electoral incentive to represent the desires of their own constituents, the voters who live in their states

Six Union-Preserving Federalism DoctrinesDoctrine of Intergovernmental Immunity

- A.k.a. federal immunity doctrine: federal immunity from state regulation or taxation- When can states impose regulations on the federal government, its agents or its property?

o 1. If Congress has spoken to the precise question in a statute, statute settles the matter

Congress may waive its immunityo 2. If Congress has not spoken, or spoken ambiguously, ask whether the state has

imposed a regulation or tax directly on the fed. gov.o 3. Whether the regulation or tax discriminates against the fed. gov.?

Legal Incidence Test: two-prong test on whom is the regulation or tax legally imposed?

1: states may not directly tax or regulate the fed. gov. or its instrumentalities

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e.g. CA cannot impose property tax on fed. gov., payable by fed. gov. for the ownership of US COA building in SF, BUT CA can impose an income tax on the fed. employees who work for COA, since they are private individuals

2: state taxes and regulations cannot discriminate against or disfavor the fed. gov’t in some way

e.g. while CA can impose tax on fed. gov. ees, it cannot subject them to a higher tax rate

o can’t discriminate fed. ees from state/local eesDoctrine of Preemption

- Derives from Supremacy Clause, in Art. VI, Cl. 2; a rule concerning conflicts of lawo operates only on the states and its political subdivisions, & regulates them in its

sovereign capacitieso In contrast to anti-commandeering (to take action), here: to place prohibition on the

states- Questions to consider

o What does the state law at issue actually do?o What did Congress intend with respect to the preemption of such state laws in

enacting the federal law at issue- Four categories: did Congress intend to displace the type of state law at issue?

o Express Preemption: explicitly states intent to displace state lawo Implied Preemption: no express statement in statute

Implied Conflict: federal and state law conflict with each other in some way Impossibility: impossible to comply with both federal and state law; is it

truly impossible to comply with both federal and state lawo Is it truly impossible to comply with both federal and state law?

Obstacle (or “Frustration of Purpose”): possible to comply with both federal and state law, but state law stands as an obstacle to the accomplishments of the federal statute’s objectives so it is displaced

o Do the structure and implicit purposes of the federal statute indicate congressional intent to displace state law at issue?

Implied Field: congress has enacted regulatory scheme so comprehensive that is is clear that Congress intended to occupy the field, to leave no room for state regulation

- Presumption against Preemptiono Where matters are within the police powers of the states, courts should hold

against preemption to preserve independent sovereignty of the states

Sprietsma v. Mercury Maine | tort law claim that motor was unreasonably dangerous for lacking a propeller guard was not preempted and could proceed to trial since there was no express preemption by statute or implied preemption since there was insufficient basis for imposing standard for guard requirement and that FBSA did not require Coast Guard to promulgate regulations

Dormant Commerce Clause- Absent express congressional authorization, states generally may not regulate or tax in a

manner that either discriminates against or unduly burdens interstate commerce- Point: prohibit protectionist state laws, laws whose purpose is to improve the competitive

position of in-state economic interests vis-à-vis their out-of-state competitors- Questions

o Whether that law discriminates against interstate commerce?

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Facial discrimination: by drawing express distinction based on geographic origin

Motivated by intent to discriminate in favor of intrastate commerce Discrimination based on practical effect: economic protectionism

o If no, does the challenged state law place an undue burden on interstate commerce?

Weigh the burden the law imposes on interstate commerce against law’s putative local benefits; if clearly excessive, it violates the dormant Commerce Clause (Pike test)

- Congressional authorization of discriminatory state regulation of interstate commerceo If Congress has used its commerce power to affirmatively authorize state or local

governments to discriminate against or unduly burden interstate commerce, then dormant Commerce Clause drops

o E.g. Prudential Insurance v. Benjamin |tax required Prudential to pay 3% on all premiums collected on SC customers, but SC insurers were exempt – but Congress allowed this to occur thru Mc. Act

McCarran Act: provided that states were entitled to regulate and tax insurance companies how they see fit

- Exception- Market Participation Doctrine: when state or local gov’t act as buyer or seller in mkt, dCC doesn’t apply

o Limit: South Central Timber v. Wunnicke | states can’t impose downstream regulations because they then act as a sovereign and not market participant

E.g. of Facial DiscriminationPhiladelphia v. NJ | facial discrimination, where a law expressly prohibited the importation of most solid or liquid waste collected or generated outside NJ, which was invalidated since it discriminated against interstate commerce

- “Virtually per se unconstitutional”: necessarily unconstitutional; must survive most rigorous scrutiny by demonstrating a legitimate, non-protectionist reason for the law, and state must lack any practicable, non-discriminatory alternatives (if there are, then it’s okay)

Hughes v. OK | OK’s enacted state law that forbade the transport of minnows captured in OK waters outside the state, if done for purpose of selling – plainly discriminated against interstate commerce Dean Milk Co. v. Madison | Law: unlawful to sell any pasteurized milk within Madison’s city limits unless milk had been processed and bottled at an approved pasteurization within radius of 5 miles – facially discriminated on basis of geographic originMaine v. Taylor | enacted law that prohibited importation of live baitfish; law was upheld even though it facially discriminated since state had no practicable nondiscriminatory means to protect against ecological risks

- E.g. of Discriminatory PurposeBaldwin v. G.A.F. Seelig, Inc. | NY law: prohibited sale of milk in NY purchased wholesale at price lower than NY milk producers; eliminate competitive edge – SCOTUS found it to be discriminatoryBacchus Imports Ltd. v. Dias | HI created tax exemption for 2 kinds of alcoholic drinks, which provided economic benefit to 2 products produced exclusively in HI; motivated by discrimination

- E.g. of Discrimination in Practical EffectHunt v. WA St. Apple Ad. Commission | NC statute required that all closed containers of apples sold or shipped into state bear no grade other than the grade applicable under US Dept. of Agri grading system; held that law discriminated since it increased costs of doing business in NC and stripped competitive advantages for WA apples

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Exxon Corp. v. Governor of Maryland | law prohibited any producer or refiner of petroleum products from operating a retail service station within the state; held non-discriminatory since it doesn’t show discrimination at retail level (look at: equitable distribution, affect in-state and out-of-state residents)

- E.g. of Undue BurdenKassel v. Consolidated Freightways | IO statute prohibited >60 ft doubles; invalidated because it made it less safe under Pike test since there were no local benefitsPrivileges and Immunities Clause of Art. IV

- Art. IV includes F/F&C, Fugitive Slave Clause, Extradition Clauseo require states to respect sister states to respect each other’s legal processes

- Priv. and Imm. Cl. constrains states’ authority to discriminate among citizens on the basis of state residence

o Structural: which states are entitled to favor their own citizens over citizens of others

o Individual rights provision: protects citizens with constitutionally guaranteed right to be free from discrimination on the basis of their state residence

o Restraint on state action of any stripe, whether it be regulation, taxation or proprietary mkt parti.

- “Right to travel” – right to move about the nation form state to state, generally unencumbered

- Distinctions from dCCo Must be a citizen: only natural persons (legal entities like corporations o Protects right of citizen to pass through/reside in any other state, claim benefit of

writ of habeas corpus, institute and maintain actions of any kind in the courts of the state, to take, hold and dispose of property, and an exemption from higher taxes or impositions than are paid by other citizens of st.

Excluded: recreational huntingo No market participant exception, but it is a significant factor as it can glean state

interest- Test for state law that discriminates against non-residents to be constitutional

o Must advance substantial state interest (the weight of state interest)o Must be substantially related to that interest (the fit between means used and ends

pursued)United Building & Construction Trades Council v. Camden | NJ ordinance required >40% of ee of contractors and subcontractors on city projects to be Camden residents; municipality is a political subdivision of state so its not immunized just because only “States” were mentioned in the clause

Privileges or Immunities Clause of Fourteenth Amendment- More narrowed scope; 14th Amendment (from Reconstruction Amendments after civil war)- Limited to protection of those priv. or imm. stemming from national citizenship- Strict scrutiny test: law is presumptively unconstitutional, requires gov’t to establish

o 1. Law is supported by compelling state interesto 2. Law is narrowly tailored to accomplish that interest

Saenz v. Roe | law provides that all residents meeting the financial criteria would be entitled to welfare payments, but if you’ve been in CA less than a year, you’d receive whatever your former residence would have given ($500 in CA, but $200 in TX); invalidated law – not legal

Full Faith and Credit Clause

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- Requires states to respect public acts of sister states by recognizing and giving effect to valid judgments rendered by courts of its sister States

o Prohibit a state from re-examining merits of the cause of action, logic or consistency, or validity

o Exception: if it was entered by a court that lacked jdx (1331 or 1332), cts can re-examine

States are allowed to inquire into other state’s jdx over matter before granting F/F&C

- In certain situations, courts have to apply statutory law of another state, except where state’s law is in violation of its own legitimate public policy

Structure of the Constitution’s Protection of Civil Rights and Civil Liberties

Bill of Rights to the States- Even if fed. statute falls within commerce power, it may be unconstitutional bc it infringes

on individual rightsState Action Doctrine

Const. authorizes fed. gov’t to regulate the action of private parties, but they are not constrained by Const.

2 Exceptions(1)Public functions: deemed state actors if they perform a fxn traditionally

performed by gov’t Prisons and halfway houses are run by private correctional service corps

(2) Entanglement: action by private actor will be deemed state action when government has authorized, encouraged, or facilitated the conduct at issue

E.g. illegal - private litigant’s use of peremptory challenge on basis of raceBoR: 1st-10th amendments, but applies to federal gov’t only

o Reconstructionist Amendments (post-Civil War) 13th: codifies Emancipation Proclamation (applies to private and gov’t action) 14th: states shall not abridge privileges and immunities, due process, nor

equal protection 15th: prohibits discrimination on basis of race (applies to state and fed. gov’t)

Barron v. Baltimore | The Bill of Rights, specifically the Fifth Amendment’s guarantee that government takings for public use require just compensation, are only restrictions on the fed. gov’t and do not apply to state or local gov’ts

- States did not have to compensate for “taking” of property since 5th Am. applies to “general gov’t”

Slaughter-House Cases | New Orleans slaughter house monopoly challenged on the grounds that it violated the privileges and immunities of the 14 A; plaintiff claiming that the Bill of

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Rights applied as such a privilege and immunity (thus claiming that the Bill of Rights applies to the states)

- Supreme Court rejects the concept of total incorporation of the Bill of Rights as applying to the states

Incorporation | incorporation of BOR into Due Process Clause of the 14th Amendment as to apply to state and local governmental action as well as federal

- Selective incorporation since four protections have not been incorporated - Implications

o Substantive due process (i.e. right to free speech incorporated to apply to states)o Unenumerated rights (rights not spelled out in the Constitution)

McDonald v. City of Chicago| Created the fundamental right test. A Bill of Rights guarantee applies to the states if it is fundamental to the nation’s scheme of ordered liberty or deeply rooted in the nation’s history and tradition.

2 elements- Right in question must be really important- Right needs to be rooted in history or tradition

Due ProcessRight to Due Process

- Procedural Due Process | issue is process that government must provide before depriving person of life, liberty or property; whether gov’t has afforded the process before deprivation, e.g. notice, hearing, counsel, etc

- Substantive Due Process | issue is deprivation of substantive right, regardless of process gov’t might provide prior to deprivation, e.g. right to free speech, freedom of religion

o doesn’t have to be enumerated in first 8 Am. to qualify as fundamental

Lochner Analysis1. What is the right?2. Does the law infringe on this Constitutional right?

a. What is the weight of the gov’t’s interest?b. How well does the law advance those interests?

i. Seemingly heightened standard: rigorous review

Lochner v. NY | A state may not regulate the working hours mutually agreed upon by employers and employees as this violates their Fourteenth Amendment right to contract freely under the Due Process Clause.

- 3 General Principles

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o substantive right protected right to contract is considered fundamental right

o governmental interest that the court considered legitimate redistributing wealth or bargaining power is not legitimate

o level of judicial scrutiny warranted for laws infringing on this right burden on gov’t to justify their necessity; lack of connection btwn max. hour

and baker safety - 3 Reasons Why Lochner was Wrong

o did not show appropriate level of deference to legislative judgmentso the right that the court protected is nowhere to be found in constitutiono protected the wrong sort of right, regardless whether it was specifically enumerated

in the Const.

New Deal & Demise of Lochner EraWest Coast Hotel v. Parrish | Minimum wage law for women enacted by WA. Went against Lochner to say that (1) right to K is not a constitutional right, (2) governmental interest in redistributing bargaining power, income, or wealth is legitimate (3) legislation interfering with liberty to enter into Ks need only be reasonable

END: gov’t asserted interest or objective need only be legitimateMEANS: law need only be rationally related to that legitimate gov’t interest

Williamson v. Lee Optical | A state may regulate a business if its legislature determines there is a particular health and safety problem at hand and that the regulation in question is a rational way to correct the problem.

- Under Lochner, would’ve been dismissed. Here, court applied “rational basis” review instead

Carolene Products’ n.4 | When should courts overturn the judgments of legislative majorities?1) When the right fits within specific prohibitions of the Constitution2) When the law interferes with the proper functioning of the political

process3) Where law is directed at a discrete and insular minority

Enumerated Economic Rights1) Taking Clause: 5th Amendment

2 Purposes1) Fairly distribute costs of acquiring property for public purposes2) Prevent political persecution through selective confiscation of property

2 Categories1) Takings Per Se

a. Physical Occupation: physically occupies the property at issueb. Deprivations of all economically beneficial use | gov’t put regulations protecting

against developments so that no construction can be made2) Regulatory Takings

a. Penn Central factors to determine if it goes too far (if too far, then regulatory)

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i. Economic impact of regulationsii. Extent to which regulation interferes with claimant’s reasonable,

investment-backed expectationsiii. Character of the governmental action

2) Contracts Clause: Art. 1, § 102 Rules1) only applies to existing contracts2) does not apply to federal government; only states & their political subdivisions

Level of Scrutinty of Ks between Gov’t and Private Parties1) Purely private Ks: intermediate scrutiny2) Government Ks: strict scrutiny as a guard against opportunistic self-dealing

Modern Substantive Due Process- Generally concerned privacy, family, reproduction, intimacy, and personal autonomy

Right to Family RearingMeyer v. Nebraska | invalidated NE law that prohibited teaching of foreign language to students prior to high school // fundamental right to chose how to raise their kidsPierce v. Society of Sisters | invalidated OR law that required all students to attend public primary schools; confirmed that it’s the parents’ and guardians’ choice to direct the upbringing and education of kids under their control

Right to ContraceptionGriswold v. Connecticut | An implied “right of privacy” exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception. Derived conclusion from 1st, 3rd, 4th, 5th, & 9th Am.Eisenstadt v. Baird | Equal Protection Cl. of 14th Am. prohibits a distinction between married & unmarried individuals

Right to AbortionRoe v. Wade | The constitutional right of privacy encompasses a woman’s right to an abortion. However, abortions may be regulated by a state after the first trimester of pregnancy and may be completely prohibited after the point of “viability” of a fetus unless necessary to preserve the health of the mother.

- Used the McDonald test to conclude it was a fundamental right- To justify, gov’t interest in protecting health of women and to protect life of fetus

- Trimester Frameworko 1st Trimester | from conception to end of month 3, decision whether to terminate a

pregnancy must be left to the woman and her physician. (no compelling state interest under Roe)

o 2nd Trimester | prior to viability, the state’s interest in maternal health justified regulating the abortion procedure in ways reasonably related to the woman’s health, but not to promote the state’s interest in the life (or potential life) of the fetus.

o 3rd Trimester | after viability, states can regulate abortion as it wished, including proscribing

o EXCEPTION: “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

CONSTITUTIONAL LAW I Joondeph Spring 2016

Planned Parenthood v. Casey | A state abortion regulation places an undue burden on a woman’s right to an abortion and is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

- Changed from trimester framework to viability regulation since gov’t has compelling interest at viability

o Standard prior to viability: does the regulation impose an undue burden on woman’s right to terminate a pregnancy?

o Standard after viability: gov’t can proscribe so as long as judgment is to preserve life or health of pregnant women; compelling interest of fetus capable of life outside the womb trumps woman’s right to termination

- Undue burden: conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus

o Spousal consent provision was considered an undue burdenGovernment Spending

Positive Liberty: right to exercise the substantive rightNegative Liberty: freedom from government interference, regulation, or constraint

- Government doesn’t have to be neutral; doesn’t have to fund services (i.e. abortion)

Maher v. Roe | burden on a poor woman’s right to terminate her pregnant was not created by gov’t, but due to woman’s lack of financial resourcesHarris v. McRae | Validated Hyde Amendment: federal Medicaid funds could not be expended for abortions unless the result of rape, incest, or if woman’s life is at stakeRust v. Sullivan | Court upheld funding restrictions on the actions of non-profit orgs that accepted federal funding for family planning servicesWebster v. Reproductive Health Services | court upheld regulation that forbade performance of abortion procedure in a state-owned facility

Right to SodomyBowers v. Hardwick | case involving a facial challenge to GA law that defined sodomy as committing or submitting to any sexual act involving the sex organs of one person and the mouth or anus of another; ct upheld the statute as homosexual sodomyLawrence v. TX | The liberty interest protected by the Due Process Clause of the Fourteenth Amendment protects the right of consenting adults to engage in intimate contact in the privacy of their own homes (non-commercial), which includes homosexual activities.

Right to Gay MarriageObergefell v. Hodges | Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples.

- Marriage is a fundamental right, applies to both same-sex and heterosexualo Right to personal choiceo Supports two-person union

o Safeguards right to control childrearing, procreation, and education

Review Session

How to distinguish political questions? A fuzzy, rare concept – Zivotofsky chief’s description- Textually, demonstrable (e.g. impeachment clause)- No judicially discoverable or manageable (e.g. guarantee clause: republican form of

government)

CONSTITUTIONAL LAW I Joondeph Spring 2016

Necessary & Proper Clause – when to throw it out in an essay? N&P clause is difficult in the following sense: many of the tests that we examine (within or without congress’ enumerated powers): necessary is already baked into the test – it’s about congress’ power, which implicitly means both N&P and X

- Circumstance like Raich: there is an identifiable class of activities that is following within reach of a statute (a broad statute that regulates activity under the scope, and if to examine statute on its face, distribution and possession of controlled substances), but there’s some subset that’s not under it.

o 1) what did congress set out to regulate (yes, on its face)o 2) well, does it have to exempt those instances of the broadly phrased activitieso reaching something they otherwise wouldn’t be able to – then N&P applies

Beside the Lopez stuff- jurisdictional element: additional language that will bring it into the three categories

if it discriminates = rigorous scrutiny

Maine v. Taylor: protectionist || dCC is meant to protect against trade rivalries between statesalways consider means: the ends is protecting public health/safety (a legitimate interest) but the means could be ridiculous (like preventing out of state waste when you can limit the amount of solid waste being dumped in state, no need for drawing boundary lines)

strict scrutiny: burden shifts to government to defend the law through compelling governmental interest // applies to law that would violate 14th amendment

Takings Clause: just compensation is fair market value

How much of the provision is unconstitutional? The higher the percentage, the more off the congruency and proportionality

Coercion is relevant when states are required to govern in their capacity its citizens; there are other contexts: coercing every citizen to be paid at least minimum wage (Garcia; coerced in proprietary capacity)

Preemption: told not to do xyz

Conflict preemption – broader category; conflict between federal and state statute; field is an example of it – look at federal statute and however you want to read it, you can infer an occupation of that field

Privileges or immunities – presumptively prohibits discrimination against non-residents; Camden; intermediate scrutiny

Roe – strict scrutiny