How to use:
There are two outlines, "Big Con Law Outline #1", which consists of a large collection of notes of the various things covered in class, and "Condensed Con Law Outline #2", which consists of a smaller more condensed and arguably more useful set of notes. I also have a two page sheet designed for memorization, made by one of my classmates. This fourth outline is another larger outline made by that same classmate. All files are hosted on Dropbox and in Word .doc format.
I don't encourage law students to copy this or any other outline prepared by another, but rather, read through it and use it to gap-fill or review the subject matter. I do encourage students to copy the strategy of writing a condensed outline for the final rather than bringing in a giant 80+ page behemoth into finals, provided they are open book/open note. Honestly, I'd prepare short-form outlines even if it was closed notes, just to use as a study aid.
Before using or relying upon this outline, please refer to this website's disclaimer.
Big Con Law Outline #1
IntroductionThe Constitution
Text of the Constitution
- Preamble
o We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America
- Article I
o Section 1
* All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
o Section 2
* 1. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
* 2. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
* 3. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every Thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled chuse three, Massachusetts eight, Rhode Island and Providence Plantations eight…
* 4. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
* 5. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
o Section 3
* 1. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
* 2. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the Second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
* 3. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
* 4. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
* 5. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
* 6. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside; And no Person shall be convicted without the Concurrence of the two thirds of the Members Present.
* 7. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.
o Section 4
* 1. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
* 2. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
o Section 5
* 1. Each House shall be the Judge of the Election, Returns, and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
* 2. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
* 3. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
* 4. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
o Section 6
* 1. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
* 2. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments where-of shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
o Section 7
* 1. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
* 2. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
* 3. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
o Section 8
* 1. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
* 2. To borrow Money on the credit of the United States;
* 3. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
* 4. To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
* 5. To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
* 6. To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
* 7. To establish Post Offices and post Roads;
* 8. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
* 9. To constitute Tribunals inferior to the supreme Court;
* 10. To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
* 11. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
* 12. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
* 13. To provide and maintain a Navy;
* 14. To make Rules for the Government and Regulation of the land and naval Forces;
* 15. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
* 16. To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
* 17. To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And
* 18. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
o Section. 9.
* 1. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
* 2. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
* 3. No Bill of Attainder or ex post facto Law shall be passed.
* 4. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.
* 5. No Tax or Duty shall be laid on Articles exported from any State.
* 6. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
* 7. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
* 8. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
o Section. 10.
* 1. 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; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
* 2. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
* 3. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
- Article II
o Section. 1.
* 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
* 2. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
* 3. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
* 4. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
* 5. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
* 6. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
* 7. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
* 8. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
o Section. 2.
* 1. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
* 2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
* 3. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
o Section. 3.
* 1. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
o Section. 4.
* 1. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
- Article III.
o Section. 1.
* 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
o Section. 2.
* 1. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
* 2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
* 3. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
o Section. 3.
* 1. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
* 2. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
- Article IV
o Section. 1.
* 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
o Section. 2.
* 1. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
* 2. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
* 3. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
o Section. 3.
* 1. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
* 2. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
o Section. 4.
* The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
- Article. V.
o The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
- Article. VI.
o 1. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
o 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
o 3. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
- Article. VII.
o 1. The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
o 2. The Word, "the," being interlined between the seventh and eighth Lines of the first Page, the Word "Thirty" being partly written on an Erazure in the fifteenth Line of the first Page, The Words "is tried" being interlined between the thirty second and thirty third Lines of the first Page and the Word "the" being interlined between the forty third and forty fourth Lines of the second Page.
Text of the Amendments
- The Preamble to The Bill of Rights
o Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
o THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
o RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
o ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
- Amendment I
o Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- Amendment II
o A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
- Amendment III
o No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
- Amendment IV
o The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- Amendment V
o No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- Amendment VI
o In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
- Amendment VII
o In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
- Amendment VIII
o Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
- Amendment IX
o The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment X
o 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.
- Amendment XI
* Passed by Congress March 4, 1794. Ratified February 7, 1795.
* Note: Article III, section 2, of the Constitution was modified by amendment 11.
o The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
- AMENDMENT XII
* Passed by Congress December 9, 1803. Ratified June 15, 1804.
* Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment.
o The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. --]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
o *Superseded by section 3 of the 20th amendment.
- AMENDMENT XIII
* Passed by Congress January 31, 1865. Ratified December 6, 1865.
* Note: A portion of Article IV, section 2, of the Constitution was superseded by the 13th amendment.
o Section 1.
* 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.
o Section 2.
* Congress shall have power to enforce this article by appropriate legislation.
- AMENDMENT XIV
* Passed by Congress June 13, 1866. Ratified July 9, 1868.
* Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.
o Section 1.
* All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
o Section 2.
* Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
o Section 3.
* No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
o Section 4.
* The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
o Section 5.
* The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
o *Changed by section 1 of the 26th amendment.
- AMENDMENT XV
* Passed by Congress February 26, 1869. Ratified February 3, 1870.
o Section 1.
* The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude—
o Section 2.
* The Congress shall have the power to enforce this article by appropriate legislation.
- AMENDMENT XVI
* Passed by Congress July 2, 1909. Ratified February 3, 1913.
* Note: Article I, section 9, of the Constitution was modified by amendment 16.
o The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
- AMENDMENT XVII
* Passed by Congress May 13, 1912. Ratified April 8, 1913.
* Note: Article I, section 3, of the Constitution was modified by the 17th amendment.
o The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
o When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
o This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
- AMENDMENT XVIII
* Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21.
o Section 1.
* After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
o Section 2.
* The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
o Section 3.
* This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
- AMENDMENT XIX
* Passed by Congress June 4, 1919. Ratified August 18, 1920.
o The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
o Congress shall have power to enforce this article by appropriate legislation.
- AMENDMENT XX
* Passed by Congress March 2, 1932. Ratified January 23, 1933.
* Note: Article I, section 4, of the Constitution was modified by section 2 of this amendment. In addition, a portion of the 12th amendment was superseded by section 3.
o Section 1.
* The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
o Section 2.
* The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.
o Section 3.
* If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
o Section 4.
* The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
o Section 5.
* Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
o Section 6.
* This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
- AMENDMENT XXI
* Passed by Congress February 20, 1933. Ratified December 5, 1933.
o Section 1.
* The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
o Section 2.
* The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
o Section 3.
* This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
- AMENDMENT XXII
* Passed by Congress March 21, 1947. Ratified February 27, 1951.
o Section 1.
* No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
o Section 2.
* This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
- AMENDMENT XXIII
* Passed by Congress June 16, 1960. Ratified March 29, 1961.
o Section 1.
* The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:
* A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
o Section 2.
* The Congress shall have power to enforce this article by appropriate legislation.
- AMENDMENT XXIV
* Passed by Congress August 27, 1962. Ratified January 23, 1964.
o Section 1.
* The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.
o Section 2.
* The Congress shall have power to enforce this article by appropriate legislation.
- AMENDMENT XXV
* Passed by Congress July 6, 1965. Ratified February 10, 1967.
* Note: Article II, section 1, of the Constitution was affected by the 25th amendment.
o Section 1.
* In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
o Section 2.
* Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
o Section 3.
* Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
o Section 4.
* Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
* Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
- AMENDMENT XXVI
* Passed by Congress March 23, 1971. Ratified July 1, 1971.
* Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.
o Section 1.
* The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
o Section 2.
* The Congress shall have power to enforce this article by appropriate legislation.
- AMENDMENT XXVII
* Originally proposed Sept. 25, 1789. Ratified May 7, 1992.
o No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.
Summary of Constitution
- Article I: Congress
o Vests legislative powers in the Senate and House
o House of Representatives: members chosen every two years; prescribes qualifications for members; requires census for apportionment; gives House power to initiate Impeachments
o Senate: members have six year terms; prescribes qualifications; Senate gets power to try Impeachments
o Provides for Senate and House elections
o Notes independence of each house’s rules, requires journals by each
o Members and Senators; certain privileges; can hold no other office.
o Bills passed by Congress to President; veto override by 2/3 vote
o Enumerates Congress’ powers: tax, spend, regulate commerce, coin money, create inferior federal courts, declare war, etc.: make “Necessary & Proper” laws to carry out Congress’ powers.
o Restricts powers of Congress: no ex post facto laws or bills of attainder, certain taxes barred, no titles of nobility
o Restricts powers of Congress: no ex post facto laws or bills of attainder, certain taxes barred, no titles of nobility.
o Restricts state powers: can’t make treaties, coin money, tax exports (unless necessary for inspection laws), keep troops, or engage in war
- Article II: President
o Establish President and Vice President, length of terms, electors and election, qualifications; removal, compensation, and oath of office
o President’s powers: Commander-in-Chief, grant pardons, make treaties, appoint officers, fill Senate vacancies.
o President’s duties: State of the Union Address, convene Congress, receive Ambassadors, commission officers; “take Care that Laws be faithfully executed”
o Sets impeachment standard
- Article III: Judiciary
o Vests judicial power of the U.S. in Supreme Court and inferior courts Congress creates; hold office during good behavior
o Establishes jurisdiction of Federal Courts, cases for Supreme Court original and appellate jurisdiction; provides jury trials for crimes
o Establishes crime of and punishment for treason
- Article IV: State Relations
o Provides for Full Faith and Credit among states
o Confers Privileges and Immunities among state citizens, provides for extradition and fugitive slaves
o Sets rules for addition of new states and power for governing territories
o U.S. guarantees states “a Republican Form of Government” and protects them from invasion.
- Article V: Amendments to the Constitution: sets procedures for amending the Constitution
- Article VI: Constitution’s Effects
o Pre-existing debts are good against the US
o Supremacy of the Constitution, laws “made in pursuance thereof,” and treaties
o Government officials bound by oath to support the Constitution; no religious test for office
- Article VII: Ratification of the Constitution: Nine states necessary
Brief History of the Constitution
- Declaration of independence
o That happened, then there was a war
o George Washington flew a boat into England and threw tea into the Pacific Ocean, and then punched King George or whatever in the face real good.
o First Constitutional Convention to make a constitution.
* Came up with the articles of confederation
- Articles of Confederation
o Similar, but weaker than the constitution in terms of federal government
o Was only a legislature, no executive or judiciary
- Shay’s Rebellion
o Local uprising that the states’ militias had trouble squashing
o Made it clear that the Articles sucked
- Second Constitutional Convention
o Created bicameral legislature, presidency with the power of the military, checks and balances, liberty protections, etc.
o They made the constitution! Good job, guys. Well, except for the slavery thing, and the other stuff. But that was fixed later with amendment. ‘sall good.
o Bill o’ Rights was added like right away, even. Even better ones later.
Judicial Power to Enforce the Constitution
Judicial Review – Generally
Marbury v. Madison (1803)
- Facts
o President Adams nominated P to be a justice in D.C.
o Madison (D), Secretary of State, did not comply with a request to deliver nomination
o Writ of Mandamus is an order to do something from the court to another body
o Marbury asked for one of these in this case to compel Madison
- Issue
o Can the Supreme Court issue a writ of mandamus to an officer under the Constitution’s enumerated powers?
- Holding
o No. This isn’t constitutional.
- Rationale
o Rule
* Court’s authority to issue such a writ granted by section 13 of Act of 1789
* Court must have original jurisdiction to hear a case…
* ESTABLISHED THE RIGHT OF JUDICIAL REVIEW FOR THE COURT
o Reason for Rule
* Separation of powers
- Thoughts
o Why is this case important?
* The first example of judicial review
* Judicial review is the right of the court to rule a law unconstitutional, or interpret a law. The Supreme Court is the Last Word.
o What happened here?
* A big struggle between early American political parties
o The questions of the court
* Does Marbury have a right to the position
* Yes, because procedure required for appointment was fulfilled. Appointment was complete. Marbury had a legal right as a justice of the peace.
* Is there legal remedy
* Is a legal remedy, as there always is, when a right is violated. Nature of the remedy depends.
* Can the court issue a writ of mandamus
* Court says no, court does not have jurisdiction. Court has only appellate jurisdiction for this issue. Conflict between constitution and the Act of 1789.
Judicial Review – Of State Law
Martin v. Hunter’s Lessee (1816)
- Facts
o Disputed property titles
o Virginia passed a statute which stated:
* The patents or grants of land from the crown of England, under the former government, shall be, and are hereby declared null and void; and that all lands thereby respectively granted shall be held in absolute and unconditional property, to all intents and purposes whatsoever, in the same manner with the lands hereafter granted by the commonwealth, by virtue of this act.
o Martin sued Hunter for ejectment from land and failing to recognize his claim, granted by King o’ England
* State law gave claim to Martin. Could state law do that? Could it contradict federal court, which would have given Martin the land?
- Issue
o Can the Supreme Court have appellate jurisdiction over state courts?
- Holding
o Yes, it can.
- Rule
o Constitution, article III: the judicial power… shall extend to all cases… in all other cases before mentioned the supreme court shall have appellate jurisdiction”
o Laws and treaties of the federal government are the supreme law of the land
- Application
o State laws and cases are included in “all” and the federal system, while respecting the rights of the states and their sovereignty, does have powers that may supersede them, as they have agreed in the establishment of such a federal government.
- Thoughts and Notes
o Has review, so long as there is some issue of federal law in question.
o Independent and adequate state law ground
* State SC, juvenile says entitled to jury trial. KS says they do have it under federal law. Then, it can be appealed to the federal court. But if they said there is a right under state, it can’t be appealed because there is an overriding interest in state laws.
o Could congress abolish the courts, other than the fed?
* Yes. Because it made them. Congress has control of the inferior courts.
Judicial Review – Sources and Methods
Originalists/Textualists
- Basics
o Constitution should be interpreted by looking at the text and intent of the Framers
o Scalia:
* “Originalism is more compatible with the nature and purpose of a Constitution in a democratic system. A democratic society does not, by and large, need constitutional guarantees to insure that its laws will reflect ‘current values.’ Elections take care of that quite well. The purpose of constitutional guarantees is precisely to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable.”
- Textualism
o Words generally to be understood in their most usual and most known signification – Blackstone, 1765
* Literal meanings of words
o Problem
* It’s always based on the words, but there are questions not answered and vague language issues
- Originalism
o Desire to implement framer’s original intent. Based on text first and supplemented with historical materials
* Often is based on the Federalist Papers
o Problem
* Often there is conflicting debate and controversy, so it’s difficult to figure out the actual original intent of the framers, or it isn’t a singular intent.
Non-Originalists/Purposivists
- Basics
o Interpret Constitution in accordance with overarching purposes to address the needs of contemporary society
o Brennan:
* “Current Justices read the Constitution in the only way that we can: as 20th century Americans. We look to the history of interpretation. The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
- Purposivism
o Look to subject matter or mischief that the law addresses, and whose last canon urged consideration of the reason and spirit of the law
* Values, concepts, and principals behind the text
- Natural Law
o Not so influential, but it was recognized by the framers. These are rights you have regardless of the Constitution. This is debatable and highly controversial, however.
- Foreign and International Law
o To what extent can the courts consider what others do?
* This has come up in death penalty cases sometimes. Because almost all other countries have prohibited it, does that influence what is or is not cruel and unusual punishment?
Other
- Pragmatists
o Basics
* Reject rigid borders around constitutional interpretation, but rather use components of various schools to reach conclusions about the law.
* Flexibility provides a better mechanism to reach decisions than any one technique affords.
o Sources of interpretation
* Textual leanings, historical glosses, philosophical arguments
District of Colombia v. Heller (2008)
- Existing law prohibited ownership of handgun, other limitations
o Was very prohibitive DC ordinances
o All right to carry firearms, or does it refer to militias?
* Heller decides on this issue that
* The right to keep and bear arms is intended for all citizens,
* Found to be unconstitutional for it’s total ban of handguns, and the disabled requirement for rifles.
* Scalia in this case says yeah, right to keep and bear arms applies to the people. This is the accepted framework and interpretation of the amendment in the bill of rights..
o What about the militia clause?
* Militia could be anyone, they say.
* Also discusses subsequent history, and the interpretation of the amendments state by state. May show what people thought during the time. Not Originalism, but it expresses the principal of individual right to bear arms
* Miller case?
* Single prior interpretation of 2nd amendment right discussing types of weapons.
* Court said no, it doesn’t protect a person’s right to have all kinds of weapons and for law abiding weapons.
* Key Heller passage
* It is not an unlimited right. May restrict some weapons.
* But still banning these weapons is unacceptable so the law is unconstitutional under any standard
* Bryer in dissent
* Guns are bad, a terrible problem, and governments need leeway to deal with this problem.
* Scalia responds by saying that this is not a consideration. That is a legislative job. 2nd amendment is there, and it limit’s government’s power. Amend the constitution if they need.
Limits on Judicial Power
Congressional Limits
- Legislatures make statutes
o Judges apply statutes, and may be limited or bound by them
* Power is limited by Article III, §1 of the Constitution
* Prohibits the diminution of compensation paid to judges.
- Congress has power over lower courts
o Article I, § 8
* Power to “constitute Tribunals inferior to the supreme Court”
* Can make lower courts, abolish them, or whatever.
o Article III, §2
* Judiciary has original jurisdiction over federal issues, and appellate Jurisdiction as to Law and Fact with exceptions as the Congress shall make
* Congress can limit jurisdiction to the Supreme Court, but they haven’t because that would be bad for the checks and balances.
- Restriction on Congressional power to exclude jurisdiction
o Privilege of Writ of Habeas Corpus shall not be suspended, unless Rebellion or Public Safety requires it.
* Writ of Habeas Corpus
* A writ employed to bring a person before a court, most frequently to ensure that the party’s imprisonment or detention is not illegal
Ex Parte McCardle (1869)
- Facts
o McCardle was arrested for disturbing the peace, inciting insurrection and disorder, libel, and impeding reconstruction
* He was a southern newspaper editor
o McCardle filed, was denied, and appealed to the Supreme Court
o Claimed that suspension of his jury right under martial law was unconstitutional, first amendment claims
* Military Reconstruction Act – divided South into districts subject to military command after the Civil War.
- Issue
o Was it unconstitutional?
- Holding
o Yes, it was, but the court didn’t get around to saying that because before the court ruled, the Congress took away the Court’s jurisdiction to hear the case. Congress strictly limited HC power for this law, so it wasn’t too broad. NO JURISDICTION.
- Rationale
o Rule
* To grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution or of any treaty or law of the United States.
* AKA orders release from custody (ARTICLE I §9)
* Freedom of speech, first amendment
* Jurisdiction is conferred by the Constitution, but “with exceptions as such congress shall make”
- Discussion
o This is the relevant question for us: Could Congress remove jurisdiction for the supreme court on this law’s constitutionality?
* No jurisdiction because Congress didn’t take away Habeus Corpus, it only took away the appeals process.
* However, can still hear the case if he files under the 1789 statute for federal law.
* Court has never said that a case cannot go to the supreme court after Congress has tried to do that, but the Congress can cut off certain avenues.
Boumediene v. Bush (2008)
- Facts
o Petitioners are enemy combatants at Gitmo
- Issue
o Do enemy combatants have the constitutional privilege of HC?
- Holding
o Yes. Enemy combatants have right of HC.
- Rationale
o Rule
* Detainee Treatment Act of 2005: certain procedures for review of detainees’ status.
* Military Commissions Act of 2006
* Inadequate procedure to supplant HC
* AUMF: President is authorized to use necessary and appropriate force against… terrorists
o Reason for
* Our basic charter cannot be contracted away (Gitmo)
- Discussion
o Right to Habeas Corpus
* Gov says no right because of where they are held and that they aren’t citizens
* Location: doesn’t matter, says majority. US Gov has functional control. No reason why constitutional protections would not apply. So this argument against Habeas Corpus doesn’t apply.
* Due Process: They don’t have sufficient foreign process, as they were captured as enemy combatants without any formal process or due process hearing.
* Right applies: Is essential to be able to pursue litigation, as it is a fundamental constitutional right not exclusive to citizens.
o Dissent
* Writ isn’t intended to apply to POWs, and is largely confirmed by history
* Danger that aliens in times of war would return to the fight
Miller v. French (2000)
- Facts
o Litigation began in 1975, class action at a prison for poor living conditions
o Trial court found living conditions violated state and federal law, including 8th amendment cruel and unusual punishment
o Court of appeals affirmed
* Involved overcrowding, doublecelling, mechanical restraints, staffing, low quality food and medical services, exercise and recreation, protective custody, fire and occupational safety standards
* Ongoing injunctive relief from 1988
o PLRA in 1996 which terminated the relief because
* “shall not grant or approve any prospective relief… unless narrowly drawn…”
o State filed motion to terminate injunctive relief on PLRA
* Prisoner class moved for temporary restraining order and preliminary injunction
- Issue
o Can the prisoners enjoin PLRA, and is PLRA unconstitutional?
- Holding
o (1) automatic stay provision of the PLRA does not permit district courts to exercise their equitable authority to suspend operation of stay;
o (2) automatic stay provision does not violate separation of powers principles; and
o (3) Congress' imposition of time limit after which the filing of motion to terminate prospective relief under a “prison conditions” consent decree would operate as automatic stay of decree did not, in itself, offend structural concerns underlying separation of powers.
- Rationale
o Rules
* Separation of powers is important. Federal Judiciary has power to review and decide cases
* Once the court decides something, it is the final say and the last word on the law
- Discussion
o Basically, the issue is if the state can re-open a case if they change the underlying law
* Injunction to provide good care of prisoners was at question
* Automatic removal of injunction under PLRA if the judge doesn’t respond within 30 days, which prisoners say was unconstitutional
o Cases that the court mentions in deciding Miller v. French
* Hayburns case: Unconstitutional for review of court decision. Violation of separation of powers.
* PLRA sort of did this by reversing the injunction,
* Plout case: Securities fraud claim, no statute defining statute of limitations for brining fraud suit, court said 1 year, and so a lot of cases were thrown out. Congress passed a law that deadlines were extended. Revived dismissed cases.
* Also opened up review, like with PLRA, and it was declared unconstitutional.
* Bridges case: passed legislation that bridges needed to be higher. Supreme court said it needed to be raised. Congress passed a law saying it wasn’t a nuisance. Bridge was destroyed, and were going to rebuild it with new regulations.
* It was a nuisance, but not going forward. Congress can do that.
* Key proposition
* Congress can change laws to conform, but cannot contradict or undo the court’s ruling
* PLRA ruled it is most similar to the bridge where it changes underlying law, not contradicts the court’s ruling. Because it was future rulings, not past rulings (nature of injunctions)
o Example: telling the court that the injunction stops would be infringing on separation of powers. But this does not tell the judge to apply or decide cases. It is still up to the judge to determine if the standards are met.
o The point?
* When can congress apply the law so that it doesn’t violate separation of powers. Lots of examples in this case.
Case or Controversy Limits
- Advisory opinions
o Advisory opinions are questions of constitutionality presented without “case or controversy” [quote from US Constitution, Article III]
o Supreme Court has declined to expand jurisdiction to advisory opinions, although they are not excluded by the constitution
- Standing
o Standing is if the proper party is bringing the legal action
- Ripeness
o Facts in controversy must have developed. Actual harm occurred versus potential harm occuring.
- Mootness
o A case is moot if it has become irrelevant due to disputes between parties ending
- Political Question
o A political question is one which is discretionary and vested into another branch of the government
Friends of the Earth v. Laidlaw Environmental Services, Inc. (2000)
- Summary
o D dumping waste, P sued on a law that allowed citizens to sue for pollution
o P gave notice of a pending suit. Before the suit was brought, D was fined and shut down the dumping.
o Appeals court said it was moot because D already stopped
- Issue
o Is the issue moot?
- Rule
o Case or controversy limitation on federal judicial authority (Article III, Section 2)
o Lujan v. Defenders of Wildlife (1992): To satisfy standing requirements in article III, P must show 1) injury in fact that is a) concrete and particularized and b) actual or imminent, 2) causation, 3) redress possible.
- Ruling
o They have standing, remanded to a lower court
- Discussion
o Article III: Defining the SC’s jurisdiction, says to all cases, controversies
* SC says it extends to cases and controversies only.
* Limits by excluding advisory opinions that are essentially questions of constitutionality directed at the SC. Would need to have a controversy for and against.
o Some State Supreme Courts do this, but definitely not SCOTUS
* Must have
o Standing
* Some kind of claim or damage resulting from the issue. Cannot just be a do-gooder or an opinionated person.
* Consists of 1) injury in fact, 2) causation, 3) redressability
* Redressability means that there is something the court can do in order to fix the problem. Money damages, injunctive relief, etc. For example, a penalty paid to the government does not benefit the plaintiffs directly, but it may deter further action and provide a deterrence, and therefore provide redress, despite the indirectness of the relief.
o Not Moot
* If moot, then it means that there is nothing the court can accomplish, or that further legal proceedings will not accomplish anything.
* Events may occur as a case moves along that eliminates the need, such as death of a party
o Project on the nile?
* Haven’t shown concretely that there were any damages, so no standing.
* May go, environmental damages, etc.
* Being troubled is not sufficient to have injury
* Taxpayer status can sue if church and state violation, but usually, it’s not useful (Hein v. Freedom from Religion Foundation (2007))
o Article III standing, aka prudential standing
* Refusal despite standing if there is widespread standing or injury that would open the floodgates to the court.
* Example: Pledge of allegiance case, even if injury/causation/redressability, no legal standing if no custody of child to which pledged allegiance to the flag. (Elk Grove Unified School District v. Newdow (2004))
Massachusetts v. EPA (2007)
- The Case
o A state sued EPA for redress in their failure to enforce environmental guidelines
o Court held that P did have standing to sue, unlike in Lujan because it was a state rather than a citizen
* Was dissent
Baker v. Carr (1962)
- Complaint alleges that due to population changes, the apportionment of districts was unconstitutional denial of equal protection clause
o Injunction from acting on it or having further elections until fixed
- Political question
o The mere fact that the suit seeks protection of a political right does not mean it presents a political question
o Court is fine determining if a branch of government has exceeded its authority
* But here, the court may not be able to give specific redress, as those are discretionary issues
o Holding
* The case involves the allocation of political power within a State… but because any reliance on the Guarantee Clause could not have succeeded it does not follow that applicants may not…. Is within the reach of judicial protection under the 14th Amendment
Vieth v. Jubelirer (2004)
- Facts
o P challenge districting map on the basis of political gerrymander
* Davis v. Bandemer (1986): political gerrymandering claims are justiciable, but court could not agree on a standard by which to judge them
* Baker v. Carr: tests for existence of a political question
- Ruling
o Court fails political test from Baker because there is no constitutionally discernable standard for apportionment, and the lack of clear guidelines means that it is a political question within the prerogative of the congress
- Discussion
o There was a lot of dissent here. Said it’s a political question, and although it is clearly gerrymandering, no method for the court for determining apportionment.
Outline of Judicial Power
- Refer to page 7 of handout
o Ways of bringing cases…
o Stuff.
Executive Powers, Privileges & Immunities
General Principles of Executive Power
Separation of Powers
- Purpose
o Prevention of Tyranny
* Federalist No. 47: “Accumulation of all powers, legislative, executive and judiciary, in the same hands is the very definition of tyranny.”
o Efficiency of Administration
* A repudiation of congressional hegemony created under the Articles of Confederation, which was very inefficient and led to the Shay’s Rebellion. Framers sought to establish a strong executive to conduct foreign and military affairs more effectively.
- Models for the Separation of Powers
o Formalism
* Demands adherence by each branch to the powers granted to that branch.
o Functionalism
* Fidelity to the purposes of the distribution of powers. Is a matter of balance between the three rather than strict adherence.
o Issues with theoretical dichotomy
* Not clearly divided or useful in all cases.
* Such as executive agencies, which are created by Congress but subject to Presidential control. These agencies often combine lawmaking, executive and adjudication practices.
o Strictly speaking these are not constitutional (formalism), but they are necessary part of the government’s efficacy and still respects the balance of powers (functionalism)
The Framework:
Youngstown Sheet & Tube Co. v. Sawyer (1952)
- The Setting
o Korean war, steel crisis between unions and management. Truman faulted management, and refused to exercise injunctive powers to halt a proposed strike. Later, he seized steel mills and designated management to keep them operating. Management feared the President would unilaterally raise wages.
o Truman was sued by Youngstown on constitutional grounds. Court granted cert right before settlement was reached, which stalled negotiations.
- Youngstown Sheet & Tube Co. v. Sawyer (1952)
o Issue
* Was the President acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills.
o Rule
* President’s power to issue the order must stem from an act of Congress or the Constitution itself.
* Was not given through Congress…
* Military powers?
o No because the steel mill does not encompass the “theatre of war”
o Ruling
* Declared the order a violation of the separation of powers.
- Discussion
o Truman exercised lawmaking power here when he seized the steel mills, says majority.
* Power under the constitution wasn’t given to him by legislature, or constitution. This is private property. Totes not an executive power.
Executive Powers, Privileges, and Immunity:
Clinton v. City of New York (1998)
- Facts
o Line Item Veto Act 1996
* Gives the President the power to cancel in whole three types of provisions that have been signed into law: 1) dollar amount of the discretionary budget authority; 2) any item of new direct spending; 3) any limited tax benefit.
* There is a process to override veto
o Members of congress sued as a violation of the separation of powers
* No standing to sue
* Must “allege a sufficiently concrete injury to have established Article III standing” (Raines v. Byrd (1997))
o Later, appellees came after line item veto was used by Clinton who had standing
* This is the current case
o Rules
* Field v. Clark: Government contends that the cancellations were merely exercises of discretionary authority granted to the President by the Balanced Budget Act and the Taxpayer Relief Act read in light of the previously enacted Line Item Veto Act.
* United States v. Curtiss-Wright Export Corp. (1936): Range of discretion in foreign affairs not allowed in domestic arena alone.
- Ruling
o Line Item Veto is unconstitutional overreach that infringes on congressional powers
- Discussion
o Dispute about Medicaid funding. Congress says they will give NY more money, President strikes it in a line item veto. Second time, Prez used line item veto to strike a tax deduction/credit relating to farmers.
o Majority says that this power infringes on the legislature
* Is a formalist analysis: lawmaking power at stake, and that the Constitution doesn’t say he can do what is formally given within the document.
* Field v. Clark doesn’t work because:
* Conditions for president to act were unknown when law was passed. President had duty to respond, but in this case, Congress knew what it was doing. President was acting in contrary, not executing their policy. Also, the issues here were domestic, and the president has less leeway as compared to international or foreign affairs.
o Does it make a difference that Congress gave him this power?
* No. Judges determine where powers go, and there are reasons why lines are where they are. Judges enforce the Constitution, so to speak. Isn’t up to the Congress or the President.
United States v. Curtiss-Wright (1936)
- Facts
o Appellees conspired to sell machine guns to Bolivia in violation of Congressional proclamation
o Federal law: If the President finds the sale of guns to be contrary to peace, the President may prohibit arms sales to those nations in the United States
- Issue
o Is this an unlawful delegation of legislative authority to the executive?
- Answer
o Because of the involvement of international relations, and international relations being under the purview of the executive, this is okay and a power that the executive may have.
- Discussion
o Direct authorization from congress to create a specific law…
* The court talks about the nature of dealing with foreign affairs.
* Really though, the Senate has to ratify treaties and Congress has the right to regulate foreign commerce. It isn’t all up to the president. But because the prez is a single representative elected by the whole country, he is best suited to negotiate treaties and deal in international relations.
* Furthermore, did not deprive anyone of a remedy, merely changed the process.
Dames & Moore v. Regan (1981)
- Facts
o American Embassy in Tehran seized, diplomatic personnel captured and held hostage.
o Carter under IEEPA declared national emergency and blocked removal or transfer of all property and interests in Iran.
o P, a subsidiary of Iran, sued against Iran, alleging the interest in a contract to survey sites for atomic power plants
* Sued for payment
- Procedural History
o District Court issued order for Iranian property to go to pay the debt
* Hostages released and an executive agreement was made to terminate all litigation between the countries, and to arbitrate any remaining disputes
- Issue
o Does the executive have the power to do that?
- Rule
o President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise, investigate, regulate, direct and compel, nullify…. Involving any property in which any foreign country or a national thereof has any interest; by any person, or with respect to any property, subject to the jurisdiction of the United States.
- Ruling
o President was authorized by Congress to make such decisions, and allowed a fair method of dispute resolution between the parties.
- Discussion
o Facts
* Carter issues XO to freeze Iran’s assets. Company sues Iran for money, Iranians release hostages, agreement to nullify judgments and arbitration suits against Iran. Said president went beyond constitutional powers in enforcing the arbitration.
o Method of analysis
* Jackson thing, range of three elements: 1. Congress agrees, 2. Congress neutral, 3. Congress disagrees
* 1 is approval and is easier to have legislative authority, less 2, even less 3
o Ruling
* Congress said yes, he has the power to do all of these things.
* Why?
o Congress approved broadly the president’s discretion in these matters. It’s somewhere between 1 and 2 on the scale of approve-neutral-disagree. Plus, it’s a foreign affair, and was a matter of necessity.
Medellin v. Texas (2008)
- Facts
o International Court of Justice established by UN to resolve disputes between member states
o Mexico brought claim against United States, for Mexican nationals to review and reconsider their state-court convictions and sentences in the United States.
o Medellin filed for Cert
* Is the ICJ’s judgment directly enforceable as domestic law in a state court in the US?
* Does the President’s Memorandum independently require the States to provide review and reconsideration of claims of the 51 Mexican nationals named without regard to state procedural default rules?
- Rules
o Sanchez-Llamas v. Oregon (2006): contrary to ICJ, Vienna Convention didn’t preclude application of state default rules. Bush determined that the US would discharge international obligations by State courts
o Nothing in the text… intended to give judgments of an international tribunal a higher status than that enjoyed by many of fundamental constitutional protections.
- Ruling
o President has an array of political and diplomatic means to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. This is Congressional territory.
o Congress must implement a treaty before it becomes binding US law
- Discussion
o US didn’t comply with treaty obligations. Went to SCOTUS arguing if the ICJ is binding on courts.
* SCOTUS said that the ICJ is binding, lower court says it isn’t. President issued an XO saying that hey, it is binding.
o Can the president do this?
*
Executive Privileges and Immunities:
- Powers enable the President to engage in particular tasks; privileges and immunities shield the President from inquiries concerning whether particular actions taken were lawful or not
United States v. Nixon (1974)
- Facts
o Subpoena directed at POTUS to produce tape recordings and documents relating to his conversations with aides and advisers.
* Claims absolute privilege, valid need for protection as a matter of efficacy of the executive. Basis for confidentiality is said to “flow from” the nature of executive powers and independence.
* Claims Separation of Powers doctrine, that the Executive is insulated from judicial subpoenas in ongoing criminal prosecution, and thereby protects Presidential communications
- Court says
o NO! Privilege of immunity is not universal, nor can it be sustained under all circumstances
* Unqualified privilege would place primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions… in short, it would conflict with judiciary powers under Article III
* Some privacy, such as the District Judge will accord deference to make sure no camera material is revealed, and only essential material is used that does not violate any state secrets or whatever. IT’s narrow, is what I’m saying, to respect privacy and whatnot while still allowing for criminal investigation.
- Notes
o question: whether the President has immunity from being subpoenaed to turn over tapes and documents to defendants.
o Nixon: I have “executive privilege” … you can't even decide this case; it's non-justiciable. He also says he has the privilege to not turn over the documents.
o Ct says his argument is not specific enough. If he had a specific reason not to turn over documents it would be different.. Nixon has no absolute privilege.
o There is a presidential privilege – based on separation of powers. But it's not absolute.
o We should presume there is a privilege.
Nixon v. Fitzgerald
- he said he was fired because he was telling people what was going on in the air force
- sued because he claimed his first amendment rights were violated
- president is absolutely immune from civil liability (policy argument: if president was being sued in civil ct all the time he'd be distracted from his work)
Clinton v. Jones (1997)
- Facts
o Respondent, a private citizen, seeks to recover damages from POTUS based on actions alleged before the term began.
o Constitution requires courts to defer such litigation until the term ends, unless exceptional circumstances, which aren’t met.
o Complaint alleges that Prez Clinton made sexual advances that were rejected. Complaint not related to his position as POTUS. Occurred while he was a Governor.
- Rule
o Immunity for suits rationale: inapplicable to unofficial conduct
o Immunity serves public interest in enabling officials to perform designated functions effectively
* Nixon v Fizgerald (1982)
* No support for immunity here
- Ruling
o No immunity from civil suits. Normal judicial process is sufficient to protect from frivolous lawsuits.
- Discussion
o Cheney v. US District Court
* PACS thought lobbyists might have been playing a role in a task force, view was that they weren’t objective, filed a suit to seek discovery. Cheney sought executive privilege. Court ruled that it wasn’t like Nixon. 1. Requests were specific. 2. These were not. Blah blah, something else.
- Notes
o incident happened before he became president.
o Clinton argues for a stay until he leaves office.
o No stay. Absolute immunity does not extend to a stay to non-presidential actions
Congress and the President
Legislative Authority
- Panama Refining Co. v. Ryan (1935)
o Statute prohibiting interstate transportation of something called “hot oil” unconstitutional because it delegated legislative power
- A.L.A. Schechter Poultry Corp. v. United States (1935)
o Statute prohibiting unfair competition unconstitutional delegation of legislative power
- Since these cases, however, the Court has allowed delegation.
o Loving v. United States (1996)
* Upholding a delegation that court martials are under the executive branch
o Whitman v. American Trucking Associations, Inc. (2001)
* Court REJECTED this argument: EPA to set air quality standards for public health was an unconstitutionally delegated legislative power
* Scalia wrote “a certain level of discretion, and thus lawmaking, inheres in most executive or judicial action.”
Ins v. Chadha (1983)
- Facts
o D is an international non-citizen
o Lawfully admitted to US on student visa, visa expired, and was ordered to show cause to not be deported for having stayed in the US longer than permitted
o Deportation suspended by judge after he met an exception
o Chairmen of the Judiciary subcommittee on Immigration introduced a resolution opposing Chadha’s resident status. Resolution was passed as a legislative act, not submitted to Senate or President
o Chadha claimed unconstitutional
* Supreme Court Agreed
- Ruling
o Congress violated separation of powers by their unilateral action. Only four prescribed unilateral acts
* A) The House or Representatives alone was given the power to initiate impeachments (Article I, section 2, cl. 6
* B) The Senate alone was given the power to conduct trials following impeachment on charges initated by the House and to convict following trial. (Article I, Section 3, clause 6)
* C) The Senate alone was given final unreviewable power to approve or to disapprove presidential appointments (Article II, Section 2, Cl. 2)
* D) The Senate alone was give unreviewable power to ratify treaties negotiated by the President (Article II, Section 2, Cl. 2)
o This didn’t fit under those things. There was no veto. The Senate had no say. It infringed on their territory
- Discussion
o Raises the question, can Congress directly influence… stuff.
o What happened?
* Was going to be deported. INS judge said no, he can stay. Attorney general says he can stay. Normally this would be about the end of things. But here, House, which set up the agency, said they had the final say in allowing or kicking folks out. IT was a veto power for decisions they didn’t like.
* Chatta says congress can’t do that because it is a legislative act that would need the full lawmaking process, requiring approval of house, senate and president. This is lawmaking and it’s set out in the Constitution as requiring this process.
* Article I, section 7
* 1. Bicameralism: To make a law, both houses have to pass it
* 2. Presentment; Must be signed into law by president or veto override to become law
o Ruling
* Majority says that that it was legislation in effect, and they didn’t satisfy the requirements.
* Only in particular acts can a chamber act independently, and they are specified in the constitution.
o Dissent/Concurrence
* Concurrence Says it’s more of a judicial function that the house shouldn’t be exercising.
* Dissent says it’s a minimal thing, necessary for oversight to be able to do this.
Bowsher v. Synar (1986)
- Facts
o Budget Act of 1985
* Purpose of act is to eliminate the deficit. It was to cause a progressive reduction in the debt to zero in a matter of years. If in excess of that, across the board cuts are mandated by the act.
* Gave power to Comptroller General to report to the President and mandate spending reductions
o Congressman sued for declaratory relief that the act was unconstitutional
- Rules
o Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts.
* Article II, Section 2
o Myers v. United States (1926)
* Statute providing that certain postmasters could be removed only by and with the advice and consent of the Senate
* Unconstitutional on the grounds that for Congress would infringe on constitutional principal of the separation of governmental powers
o Humphrey’s Executor v. United States (1935)
* FTC removed by President sued for backpay
* Statute permitted removal by President, but only for inefficiency, neglect of duty, malfeasance in office. Court upheld the statute, holding that illimitable power of removal is not possessed by the President
* Court distinguished Myers, reaffirming its holding that congressional participation in the removal of executive officers is unconstitutional
o The powers vested in the Comptroller General under section 251 violate the command of the Constitution that the Congress play no direct role in the execution of the laws.
- Discussion
o Law challenged by a congressman who voted against the act. Standing? I suppose so, for some reason. Can’t remember what. Should probably know that for the exam.
o Executive branch officials are the parts of the agencies, with their roles defined by Congress.
* Court has said Congress can’t remove executive branch folks, but can say that folks can only be fired for “good cause” or whatever.
o What does comptroller do?
* Execute the law as they wrote it. But he is a legislative officer. But answers to the executive branch… WHAT THE HELL.
* Separation of powers concerns
* Court says comptroller can’t do this.
* Concurrence says it’s legislative and can’t be delegated to comptroller general.
o Questions presented
* Appointment and removal of executive officials
* Does constitution say anything about appointment and removal of officials?
o All officers of the US, including ambassadors, etc., President nominates, Senate confirms. May invest inferior officers’ appointment process in others.
* Divides kinds of officers between Principal vs. Inferior
* Article 2 section 2
* Principal officers?
o SCOTUS, Appellate and circuit judges, and more
* Inferior officers?
o Congress can decide how appointed. President alone can decide, courts can decide, or heads of departments can pick them.
* Removal
* Is impeachment process. It’s rare and infrequently used.
* President can sometimes fire people.
Morrison v. Olson (1988)
- Facts
o Act allows for the appointment of an independent counsel to investigate and prosecute certain high-ranking Government officials for violations of federal criminal laws.
- Holding
o Provisions of the Act don’t violate the Constitution, nor do they violate the constitutional principal of separation of powers.
- Rationale
o Rule
* Appointments Clause of Article II
* President shall nominate… Ambassadors…and all other Officers of the United States.”
* Constitution divides officers into two classes (Buckley v. Valeo (1976))
* Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary.
o Application
* Even if applicant is inferior, officer the Clause doesn’t empower Congress to place the power to appoint such an officer outside the Executive Branch
* We have never held that the Constitution requires that the three branches of Government operate with absolute independence. (United States v. Nixon)
- Discussion
o Issue with council appointed: is he (independent counsel) principal or inferior officer?
* Majority says inferior because she has very limited duties and powers.
* Considers a variety of factors
* How are inferior officers appointed? (Article II, appointments clause)
* 1. Through president alone
* 2. Courts of Law
* 3. Heads of Departments
* Here, was appointed by the courts of law, which is constitutional
* It’s a limited interaction, no executive exercise of power by the judges.
o Two key arguments in the case
* President can’t fire independent council
* Can be removed by AG, which is under control of POTUS, which means it’s still executive control, albeit indirect.
* Council wields executive power with little control
* There are some fine lines here.
* Scalia dissents and thinks that this is a violation of separation of powers.
o The court has struggled, but generally, Congress wins in allowing this kind of thing
* Duties, accountability, tenure, etc. are factors in determining if an officer is an inferior one.
* Some are pretty clear.
Free Enterprise Fund v. Pcaob (2010)
- Act
o Act – tighter regulation of the accounting industry under a new Board composed of five members.
o SEC’s oversight, members of the board are substantially insulated from the Commission’s control. Commission cannot remove Board members at will, but only “for good cause shown” in accordance with certain procedures
- Issue
o May the President be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that officer determines the policy and enforces the laws of the United States?
- Holding
o Dual for-cause limitations on the removal violate the separation of powers
- Rule
o Executive Power shall be vested in a President.
- Application
o Neither the President nor anyone directly responsible to him has oversight to the board members. President is stripped of the power our precedents have preseverd. Without the ability to oversee the Board, or to attribute the Board’s failings to those whom he can oversee, the President is no longer the judge of the Board’s conduct.
- Discussion
o President appoints SEC members, Senate confirms. President can fire only for good cause (limited removal power). SEC appoints PCAOB, which can be removed only for good cause.
o Issue: 2nd layer of removal is too distant from the POTUS – article 2 violation – SEC exercising executive control.
* In essence, there is no power the President has over the PCAOB.
o Decision:
* Court says multi-level protection is unconstitutional and should stop after one layer of limited removal power.
* Majority’s remedy makes the removal power of PCAOB by SEC at-will instead of for-cause
o Dissent:
* Says that limited removal power over SEC is still too much power taken away from POTUS
o Another example of interbranch conflicts
* Recess appointments
* Court of appeals shot them down recently
o Principal officers must be confirmed by Senate. When not in session, can’t…
* May soon be before SCOTUS again
The President, Congress, The Court and War
- Separation of powers principles concerning allocation of authority for conducting war
o Complex issues of free speech, cold wars, proxy wars, terrorists, non-state actors, etc.
o Congress has the power to declare war, but what does that mean?
o The Commander in Chief has the power to make war, but what does that mean?
- Divided responsibility for waging war
o To prevent unwise lurching into war
o Congress
* May call forth the militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions - Article IV; Section 4; Article I; Section 8, Clause 15
The Prize Cases (1862)
- Facts
o President issued blocade of persons in rebellion of the Government
- Issue
o Did the president have a right to institute a blockade of ports in possession of persons in armed rebellion against the Government, on the principles of international law?...
- Rules
o Congress alone, in the Constitution, has the power to declare national or foreign war.
o POTUS can’t initiate war, but may respond to it in his authority as executive.
- Ruling/Application
o All persons in territory whose property may be used to increase revenues of hostile power are liable to be treated as enemies. Blockade was within power of president and commander in chief, didn’t need congressional approval. Within scope.
Ex Parte Quirin (1942)
- Facts
o Trial regarding the detention of prisoners for trial by military commission
o Petitioners are German born, living in US. All except one are German citizens.
o POTUS appointed military commission to sentence them to trial, accused of receiving trainings in explosives and whatnot
o Petitioners claim that POTUS is without statutory authority to order petitioners to be tried by military tribunal, and that they are entitled to civil trials
* Right to due process
- Ruling
o Ruled in favor of POTUS
* Good faith held as prisoners of war as authorized by the exception of military actions and such, as they are prisoners of war. President is within his prerogative to do this.
Congressional Power
Necessary and Proper
McCulloch v. Maryland (1819)
- Facts
o Historical Context
* First bank of US, supported by Hamilton and opposed by Jefferson
* First bank wasn’t subjected to definitive constitutional scrutiny
* 2nd bank created in 1815, and many states sought to tax it
o Facts of the Case
* Act
* Congressional act (1816) created the Bank of the United States
* Maryland passed an act to impose a tax on all banks in the US not chartered by their legislature
o This included the new Federal banks
- Issue
o Did Congress have the power to incorporate a bank?
- Rules
o Government can only exercise powers that are enumerated to it.
* Including those that are necessary and proper in carrying it out
- Application
o Establishment of a bank is not among the enumerated powers of the federal government
* However, Constitution does say that Congress has the power to lay and collect taxes, borrow money, regulate interstate commerce, etc.
o Powers given to the government imply the ordinary means of execution
* Congress is empowered to do things Necessary and proper to carrying out those enumerated powers
- Holding
o Necessary is taken to mean that which is not an “absolute physical necessity”, but rather is useful, convenient or essential. These are “means calculated to produce an end”
o Making a bank was allowable because it was “necessary and proper” to tax and regulate interstate commerce
* Maryland can’t tax or impede the federal government in carrying out their enumerated powers
- Discussion
o McCullogh v. Maryland
* Two key holdings
* 1. Necessary and proper clause gives Congress power to create banks.
* 2. States generally cannot tax federal interests – governmental immunity
* Big picture
* Marshall’s approach to constitutional interpretation
o Doesn’t expect the precision of a statute
o Necessary and proper is a grant of power, not a limit.
United States v. Comstock (2010)
- Facts
o Federal statute allows district courts to order federal prisoners into mental hospitals if they satisfy certain conditions for mental illness-related crimes.
* The statute allowed the federal government to send prisoners to mental hospitals, and have them detained there, past their sentences if they still appeared to represent a danger because of their untreated mental illeness.
- Issue
o Does Necessary and Proper clause grant authority sufficient to enact the statute?
- Holding
o Yes.
- Rationale
o 1. N and P grants broad authority to enact federal legislation
o 2. Civil commitment staute is a modest addition to federal prison-related mental health statutes that have existed
o 3. Congress reasonably extended civil commitment to mentally ill and dangerous folk, even if it detains them past their criminal sentence.
o 4. Statute accounts for state interests.
o 5. Links between enumerated powers and the statute are not too distant. There are no inferences piled upon inferences here. It pretty clearly and narrowly acts to apply the power to enforce federal laws…
- Discusssion
o Reasonable extension of current stuff… necessary and proper to carrying things out.
* What does it give you?
* Necessary and proper gives congress a lot of implied power to accomplish what they need
* Threatening to proponents of limited government
The Commerce Power
Gibbons v. Ogden (1824)
- Facts
o Historical Context
* Congress had previously only regulated commerce lightly.
* With the great depression and FDR’s new deal, this changed quite a bit.
* This is before that, though.
o The case
* Relating to the navigation of waters in the NE multi-state area
* NY State bill gave some dudes exclusive navigation rights in the area
* Gibbons violated the statute by navigating the relevant waters
* Gibbons said that his boats were federally licensed and permitted to be there.
* Gibbons claimed that the state laws were unconstitutional and contrary to the interstate commerce clause, or the Congressional power to regulate interstate commerce.
o Issue
* Was navigation interstate commerce?
* Was the state law unconstitutional in restricting the flow of interstate commerce with license and whatnot?
o Holding
* Yes interstate commerce, yes unconstitutional
o Rationale
* Congress shall have power to regulate commerce with foreign nations, and among the several states and with the indian tribes
* It’s in the constitution
* What is commerce?
* Intercourse. Navigation is undoubtedly interstate – intercourse. Things going back and forth. Congress can regulate this as a matter of their enumerated power under the commerce clause.
* State law cannot do what it did. BAM. Unconstitutional.
- Discussion
o Gibbons v. Ogden
* Clause 3: The commerce Power
* Power to give licenses to navigate waters?
o Marshall asks what defines “commerce”
* Commercial intercourse. It’s a broad notion.
* Is Navigation Commerce?
* Yes. Fo’ Sho’
Wickard v. Filburn (1942)
- Facts
o Context
* This was after the new deal. That’s important to note, I guess.
* This is one of the most expansive views of the Commerce power, and is a good one, so to speak
o Facts of the case
* Filburn
* Sought to enjoin enforcement against himself for a marketing penalty
o The penalty related to a statute that limited wheat crop marketing quota established for his farm as a part of the new deal.
* Had an allotment of 11.1 acres and grew 23 acres worth, which in effect, devalued other folk’s wheat crops by increasing the supply of such crops.
- Issue
o Is the act sustainable under the commerce clause, or in other words, are the market quotas a necessary and proper use of regulating interstate commerce?
- Rule
o Congress has right to regulate interstate commerce.
- Holding
o Yes. Act is sustainable under commerce clause, necessary and proper law.
- Rationale
o Intrastate commerce has bearings on interstate commerce. Economic effects of such activity is difficult to calculate, and would be improper for the court to try to do so (despite his contention that the excess did not inter into the interstate market).
o Home consumption of wheat has the effect of depressing interstate consumption, even if the product does not pass state borders.
- Discussion
o Even if we assume it’s local, and commerce… effect on local commerce?
* Yes. If he can grow for his own consumption, so can everyone else. Will have cumulative effects that do extend to a large scale. Has substantial effects on the interstate market for wheat.
o So long as there is some reasonable inference of an effect on interstate commerce, congress can do just about anything it wants.
Heart of Atlanta Motel v. United States (1964)
- Facts
o Hotel discriminates against blacks
o Continues in violation of civil rights act
o Constitutional challenge of civil rights act
* Any hotel/motel open to the public may not discriminate on the basis of race, etc. for potential customers
- Issue
o Does racial discrimination and the civil rights act fit under the commerce clause powers?
- Rule
o 14th equal protection clause, people be protected
o Commerce clause
o Necessary and proper clause
- Holding
o Constitutional!
- Application
o It’s a race discrimination problem. 14th amendment?
* Doesn’t apply for private individuals discrimination of other private individuals.
* Only applies for state discrimination
o Commerce clause
* By discriminating, certain groups may not be want to travel. Portions of the population, i.e. racial minorities, may be discouraged. May disrupt interstate commerce. Therefore, congress has a right to enforce this.
* But a motel doesn’t travel out of state. Motel argues “we’re local.” However, there are clear connections to interstate commerce. 75% of guests are out of states, ads in national magazines, so on.
- Discussion
o Hypo
* Would it matter if it was only in-state?
* Still impedes travel. Didn’t matter in Filburn, and so it doesn’t matter here.
o Key question
* “does the regulated activity have a substantial impact on interstate commerce?”
* The modern test:
* 1. Did congress have a rational basis for x effecting interstate commerce?
* 2. If x did, did Congress choose reasonable and appropriate means for regulating interstate commerce?
o Latzembach v. McClung
* Nearly purely local business, still could regulate under commerce clause
* Affirmed broad nature of the power.
United States v. Lopez (1995)
- Facts
o 1990 gun free school zones act
* illegal to knowingly possess firearm within 1000 feet of a known school zone.
o Dude brought firearm to school. Was arrested for it.
* Says that statute is unconstitutional
* Not under the commerce clause because no effect on interstate commerce.
- Issue
o Did this affect commerce?
- Holding
o Unconstitutional.
- Rule
o Commerce clause. Broad reading vs. narrow one.
- Application
o Would be too broad, saying that everything has economic impacts.
* Under this reading, it would be infringing on state rights to enforce criminal laws. (federalism)
* Not interstate commerce.
- Discussion
o About this ruling
* Commerce power is expansive, but not limitless
* Otherwise, it’s inconsistent with the view that the constitution is a document of enumerated powers.
* Everything can be tied to commerce, if broad.
o Categories of regulation permissible
* 1. Use of channels of interstate commerce
* Airlines, trains, roads, bridges, etc.
* Rational basis and reasonable need standard for determining.
o Great deference to congress here.
* 2. Instrumentalities of interstate commerce
* The people and things that move interstate
* Rational basis and reasonable need standard for determining.
o Great deference to congress here.
* 3. Activities with a substantial relation to interstate commerce.
* Like Wickard, may be a bit more expansive, but is limited, as shown by Lopez.
* Problems with this?
o 1. Nature of the activity is commercial, economic (factors that must be present)
o 2. Look at factors
* a) jurisdictional element (must prove interstate commerce, like the gun crossed state lines or whatever)
* b) congressional findings (how it connects to interstate commerce)
* c) causal link (between prohibition and interstate commerce)
* d) Area of traditional state concern (from the concurring opinion)
* Implication of this case?
o There would be no limit. Would need to pile inference upon inference here.
United States v. Morrison (2000)
- Facts
o Consider the constitutionality of VAWA.
* A person who commits a crime of violence motivated by gender, shall be liable to the party injured.
o Petitioner enrolled in college, was assaulted and raped by football players.
o Depressed, withdrew from university.
o Brought civil suit, and the players claimed that it was unconstitutional.
- Issue
o Can Congress regulate violent crime against women on the basis of the equal protection act and the commerce clause?
- Holding
o Ruled the provision of VAWA unconstitutional.
- Rule
o A criminal statute that… has nothing to do with commerce… no express jurisdictional element… (rule from Lopez).
- Application
o Gender motivated crimes are not economic activity
o No jurisdictional element establishing a federal cause of action to regulate interstate commerce
o Now, there is numerous findings that support the economic impact of gender-motivated violence
* However, not sufficient to sustain constitutionality
* “simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so”
- Discussion
o Facts
* Morrison sued under VAWA, civil remedy for economic effects from gender assault.
o Issue
* It’s a local event, etc, into category 3 for commerce clause-based regulations
* Questions:
* 1. Does activity substantially effect commerce or is it economic in nature?
o Gender motivated crimes are not commercial or economic activity, in any sense
* 2. Jurisdictional connection
o No requirement that any connection to interstate commerce occur
* 3. Legislative findings
o Reasoning unworkable, because the findings…
* There are boxes that back this up, but…?
* Apparently, this doesn’t matter so much to the court. Isn’t a critical point for determining a judicial review under the commerce clause.
* 4. Causal link
o Findings try to show the link between crime of women and interstate commerce. And yes, it does. But all crimes have effect on interstate commerce. This standard would be too broad, attenuated.
o In short, rape not economic in nature, so blah.
Gonzalez v. Raich (2005)
- Facts
o California legalized medical marijuana
o Citizens sought injunctive relief prohibiting enforcement of federal law that prevents them from possessing, obtaining, etc. medical marijuana
* The law is meant to control the demand of controlled substances in lawful and unlawful drug markets. Congress used Wickard standard for arguing that home-consumed marijuana had an effect on price and market conditions interstate.
- Issue
o Is this growing medical marijuana any different than wheat in Wickard?
- Holding
o No. Fed law is constitutional. Citizens lose.
- Rule
o The rule about regulating intrastate or private consumption if it still directly effects interstate markets.
- Application
o Yeah, it would leave a big hole in the enforcement of the act, which has a clear interstate commerce element. Pretty clear, I’d think.
- Discussion
o California pot growers. Seeking relief, conflict between state and federal law. State is legal, fed is not legal.
o Difference is that growing and selling is clearly commerce
* Growing and selling. So even if you assume category three – not interstate, it’s economic and commercial activity. Wickard says it’s necessary and proper to regulate this because it leaves a big hole in enforcement of federal law, could easily end up in the interstate market.
o Dissent says it’s okay for personal use, saying that it goes too far in regulation. Wickard is dumb, and this would extend beyond Lopez and Morrison limits.
- Overview for commerce clause thus far
* 1. Use of channels of interstate commerce
* Rational basis and reasonable need standard for determining.
* 2. Instrumentalities of interstate commerce
* Rational basis and reasonable need standard for determining.
* 3. Activities with a substantial relation to interstate commerce.
* Test
o 1. Nature of the activity is commercial, economic (factors that must be present)
o 2. Look at factors
* a) jurisdictional element (must prove interstate commerce connection, like X crossed state lines or whatever)
* b) congressional findings (how it connects to interstate commerce)
* c) causal link (between prohibition and interstate commerce)
* d) Area of traditional state concern (from the concurring opinion)
NFIB v. Sebelius (2012)
- Facts
o Affordable Care Act challenge
* Requires people to buy health insurance providing a minimum level of coverage.
* Those who don’t comply must make a shared responsibility payment to the Fed.
o Congress says
* Power under the commerce clause. Impact on interstate commerce, those without insurance tend to go to hospitals and put burden on them… and it raises insurance premiums across the board. Substantial effect on interstate commerce.
- Issue
o Does congress have the power to mandate health insurance coverage under the Commerce Clause?
- Holding
o Not under the Commerce Clause.
- Rule
o Commerce clause gives power to regulate commerce.
* Regulate presupposes existence of commercial activity to be regulated.
- Application
o Individual mandate doesn’t regulate, it compels individuals to become active in commerce…
* This would be a too expansive understanding of the commerce clause
- Discussion
o How the law works
* The goal is universal health care coverage. They did this in two ways
* 1. Individual mandate (at issue in this case here)
o Can you make people buy congress?
* Congress argued under the commerce clause and the necessary and proper clause.
* However, nature of commerce clause is to regulate, not create. This statute created it, and there is a difference.
* 2. Expand Medicaid
o Problem 5
* Would it be within Congress power to:
* Forbid construction that would eliminate small ponds used by migrating birds?
* BY THE WAY
* This section would be useful in testing out commerce clause section for exams
Other Powers
The Taxing Power
NFIB v. Sebelius (2012)
- Facts
o Affordable Care Act challenge
- Issue
o Congress have power to mandate insurance coverage? Or specifically, is viewing the individual mandate as a tax a reasonably possible one?
- Holding
o ACA’s individual mandate is CONSTITUTIONAL as a TAX.
- Rule
o Power has the power to lay and collect taxes… for the common defense and welfare of the nation.
o Penalties not taxes, taxes not penalties
o Penalties may be called taxes, but not be such.
* [relevant because Affordable Care Act has a “penalty” for lack of insurance]
- Application
o It is collected in much the same way as taxes, and it produces at least some revenue for the Government.
o Not a penalty because
* Often far less than price of insurance, and can never be more
* No requirement of knowledge of wrongdoing
* Payment is collected by IRS through normal means of taxation
o May be called a penalty, but if penalties may be called taxes, then taxes may be called penalties
* In other words, the labels don’t mean much in determining what they actually are.
- Discussion
The Spending Power
South Dakota v. Dole (1987)
- Facts
o South Dakota allows 19 year olds to buy 3.2% beer.
o Congress enacted legislation to withhold highway funds to states that allow alcohol consumption for folks under 21 years old.
o State argues that it violates the spending power and violates the 21st amendment to the US constitution
- Issue
o Can the Fed make spending conditional in a state that conditions the funds upon the compliance with a standard that the Fed is constitutionally disallowed from directly regulating?
- Holding
o Yes. Fed can do that. Law is constitutional.
- Rule
o 21st amendment
* States have virtually complete control over alcohol sales, permits and so on.
o Congress has the power to lay and collect taxes… and provide for the common Defence and Welfare of the United States”
* Congress may attach conditions on the receipt of federal funds, and has employed the power.
* Scope of this power?
* US v. Butler (1936): power of Congress to authorize expenditure of public money for public purposes isn’t limited by direct grants of legislative power found in the Constitution.
o In other words, it can spend money however it wants, save a few particular restrictions
* Must serve public purposes, deference to Congress.
* If funds are conditional, must be unambiguous, and enable the states to exercise their choice knowingly
* May be illegitimate if they are unrelated to the federal interests in particular projects or programs
* Other provisions may provide an independent bar to the conditional grant of federal funds
- Application
o 21st amendment
* doesn’t expressly prevent congress from regulating the age like this. Just means that Congress can’t regulate the permits and whatnot.
* Regardless, not relevant here because the issue doesn’t flat out regulate it. It just pressures the states to act under the threat of withdrawing highway funding.
* This would be within constitutional bounds even if Congress may not regulate drinking ages directly under the 21st amendment.
o Spending
* If there is an independent constitutional bar – the last rule part, is what South Dakota claims
* Because Congress may not use the spending power to regulate that which it is prohibited from regulating directly under the 21st amendment
* No. This means that the Fed can not induce actions by the state that are or would be unconstitutional.
o Raising the minimum drinking age to 21 would not be unconstitutional.
o Therefore the fed can do this.
- Discussion
NFIB v. Sebelius (2012) (again)
- Facts
o Affordable care act
* Provision regarding the Medicaid expansion
* Funds to states on the condition that they provide specified health care to all citizens whose income falls below a certain threshold
* Fed funds are a substantial part of the funding for this state-run program
* If a state didn’t comply with the requirements, not only would they loose out on additional funding, but they would also loose funding altogether
- Issue
o Does the Medicaid expansion exceed Congress’s authority under the Spending Clause?
- Holding
o Yes. Court said that Congress may not condition compliance on existing funds, but may condition additional funds on compliance with Medicaid expansions.
- Rule
o Federal government may not compel the states to enact or administer a federal regulatory program
- Application
o No doubt that it increases state obligations under Medicaid
* But normally this is allowed
* But this is atypical because of the size and dependency on Medicare funds
- Discussion
o Talking about this case: Could congress take away all funding, or set it to zero?
* No. Too much.
* Dissent says yeah. This decision could encourage political judgments, not properly for the courts.
o Severability
* If one provision is struck, some statutes say the whole thing is done. In other statutes, they can remove just one part of a statute or act individually. Here, the court just chopped off a part of the statute itself. The Medicare penalty.
Overview
- Powers of Congress
o Can decide what courts exist beyond the supreme
o Power over jurisdiction
o Commerce clause, necessary and proper clause
o 10th amendment
o 16th amendment
Federalism
Congressional Regulation of the States
The Tenth Amendment and Regulation of the States
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.
Gardia v. San Antonio Metropolitan Transit Authority (1985)
- Facts
o Mass transit system
* Subject of this case.
* It’s a government function, says lower court. So it is exempt from obligations imposed by FLSA
* FLSA is the fair labor standards act.
o FLSA
* Commerce clause doesn’t empower Congress to enforce minimum-wage and overtime provisions against the state in areas of traditional government functions.
- Issue
o May Congress regulate the minimum wage in states?
- Holding
o Yes.
- Rule
o Federalism concept as enumerated in the 10th amendment states that powers not delegated to the Fed go to the States, and then to the people, if not otherwise limited.
* It’s unconstitutional for the fed to enforce minimum wage laws in areas of traditional government function
* That rule sucks, is unworkable, and is overruled
o State sovereign interests are better protected by procedural safeguards inherent in the structure of the federal system rather than by judicially created limits on federal power.
- Application
o Nothing in the FLSA that is destructive to state power or sovereignty or violative of any constitutional provision. Minimum-wage obligations are fine.
- Discussion
o Legislators come from the states, so they have some discretion in telling the states and their governments how to do things.
* Garcia said that it is a political question when talking about mandating minimum wage standards for state employees. There is no clear line here that is enforceable
* Dissent:
o Can’t have congress being their own judge of control over the states
New York v. United States (1992)
- Facts
o Issue involving the disposal of radioactive waste
o Low-Level Radioactive Waste Policy Amendments Act of 1985
* Federal policy responsible for providing for the availability of capacity either within or outside the State for disposal of low-level radioactive waste generated within its borders. Or something like that.
* Has monetary incentives, access incentives, title provision that makes states liable for damages incurred as a failure for the state to take possession of the waste
- Issue
o Does congress have the power to directly compel states to dispose of radioactive waste generated within their borders?
- Holding
o No. Congress does not give Congress the power to compel states to dispose of radioactive waste generated within their borders. Act unconstitutional, Federalism.
- Rule
o Article I congressional power, or state sovereignty by the 10th amendment
* i.e. question of federalism
- Application
o Congress can’t simply commandeer the legislative process of the states by compelling them to enforce a federal regulatory program
* Can suggest, entice, but not force. Blah blah, you get the point.
- Discussion
o If states do not comply, they give them the waste.
o States claim violates 10th amendment, violation of state sovereignty. Federalism
* Disposal of radioactive waste seems like commerce. The problem is the handing off of the waste if States intrude on sovereignty of the state.
* A question of article I powers. How far does their powers go? It’s another way to look at it.
o Problem in this case, or the difficult question?
* Regulation versus compelling. Can’t force or compel states to do certain. This law directly regulated the states rather than private folks and whatnot.
* Difference from Garcia, was that the state was targeted as a state. Not just getting caught up in it.
* Congress doesn’t have the power to force them to take ownership and whatnot, directly. Was too coercive.
o Big picture from this case?
* Any difference between article I and 10th amendment protections, or are they sides of the same question?
* Something troubling (if unconstitutional) about Congress simply telling states what to do. Can’t simply commandeer the States, although they may have the same effect by bribing them with Fed funds.
Printz v. United States (1997)
- Facts
o Gun Control Act of 1968
* Federal scheme governing distribution of firearms
* Required 1) receive a statement containing info, 2) verify identity, 3) provide the law enforcement notice of the transfer of ownership for the firearm
* Penalizes with fines or even jail time
- Issue
o Does the Act, in commanding state and local law enforcement officers to conduct background checks on prospective gun buyers and to perform related tasks, violate the principals of Federalism?
- Holding
o Is unconstitutional to force law enforcement officers to conduct background checks.
- Rule
o Federalism. It’s a thing.
- Application
o There is no constitutional authorization for the statute. Forces state (law enforcement) to do something, and that is the supposed violation of federalism.
* Obligations to make reasonable effort… so on and so forth.
- Discussion
o Congress can’t tell states to pass laws or implement programs.
* Federalism
Constitutionality Immunity of the States
- Discussion
o 11th amendment speaks to judicial power, but also serves as a constraint on the congress
o applies to all courts, not just the supremes or feds (alden v. Maine)
* Interstate immunity, sovereign immunity of the states
* Immunity is broader than the text, as the court has found (not a literal reading)
* Applies to sovereign tribes too
o Hans v. Louisiana is an important case in this
* Even Scalia goes with it, despite his Textualism
o State can be sued when
* Between two states, US can sue in federal court, state can waive immunity, if suit is based on state law
Seminole Tribe of Florida v. Florida (1996)
- Procedural history
o Indian tribe filed suit against Florida to compel negotiations under the Indian Gaming Regulatory Act (IGRA). The District Court of Florida denied Florida's motion to dismiss, and state appealed. The Court of Appeals, dismissed appeal. Certiorari was granted.
- Holding
o The SCOTUS held that: (1) Congress lacked authority under the Indian commerce clause to abrogate the states' Eleventh Amendment immunity, and (2) doctrine of Ex parte Young did not apply in light of intricate remedial provisions of IGRA.
- Case 1
o First question is immunities of states to be sued, are states able to be sued?
* Court says ambiguity goes against the fed and for the states. However, it is pretty clear in this legislation
o Second question, is it a valid power to override the immunity
* Hmm…
o Dissent
* Says original powers in Constitution…. Something blah blah
o Other notes
* Cities and counties not protected by 11th amendment
* State university sued for patent infringement?
* Art. I sec. 8 patent thing, fed territory. Can they sue? No. Congress can’t, I guess? May be able to reach particular officials, but not the university, I guess, as a citizen.
Alden v. Maine (1999)
o Almond v. Maine
* Group of probation officers trying to sue Maine for violating overtime provisions of fed act
* Problem with suit in federal court?
* Law is based in commerce clause power, but can’t override sovereign immunity with fed law, Is a fed law being used to sue a state.
* Bottom line
* Congress doesn’t have power to allow citizens to sue states
* Okay. So, can’t sue state in fed or state court, how do you force the state to comply with federal law?
o Lesser entities or officials for injunctive relief (governor, AG)
o Can sue lesser entities like cities or counties.
* Dissent
* Says that literal text says that it doesn’t say all these things. Has a much more limited reading of the 11th and the limitations it imposes on sovereign immunity.
Federal Maritime Commission v. South Carolina State Ports Authority (2002)
* Boat docking, federal law supersedes state, says we can park here
* Maritime commission says: port authority is an arm of the fed, and states have immunity here
* Unique thing?
* It’s sort of a fourth branch of the fed, for the court, so can they sue in this court or not?
* Ruling
* Should look at
o Historical record, although it is unclear it’s original purpose
o Does it appear to be a court, with judges and whatnot
o Seems just like a lawsuit in terms of filing and procedural rules. Walks talks and squaks like a court
* It’s the fed. Too bad if they can’t bring suit about it. It’s the constitution.
o Penhurst
* Can’t sue state person for state law in fed court.
Constitutional Limits on the States
Overview
- Preemption
o Presumption against it based on federalism
*
Home Building & Loan Ass’n v. Blaisdell (1934)
- Facts
o Challenge constitutionality of Minnesota Mortgage Moratorium Law on the basis of contract clause
* Act says that judicial relief may be granted with respect to home foreclosures
* Authorizes district court to extend period of redemption from foreclosure. Essentially, it buys home owners more time to pay back their loans, by whenever they think is equitable, contrary to contracts.
- Issue
o Does the state of the housing emergency allow Congress to impede contracts by postponing foreclosures due to nonpayment by home owners?
- Discussion
o Facts
* Law adjusts price of contract, don’t have to abide by original terms of contract under the state law
* Property being foreclosed and sold, but this law made the terms more favorable for the former home owner
* A kind of borrower relief
o Problem
* Obligation of contracts, impaired
o Exceptions
* Sometimes when state has acted to override contracts its cool, such as booze and lotto. SC says it’s okay for the health of the people. That’s been found to be okay.
o Dissent
* Textualism/formalist argument. Emergency doesn’t furnish the condition for power… emergency should be a consideration. This law impairs contracts. Not supposed to do this.
o The point
* Court has not given the contracts clause a lot of teeth. Only agregious situations have been found unconstitutional under this clause
U.S. Term Limits v. Thorton (1995)
- Facts
o Constitution says folks in the House:
* Must be 25 years old, 7 years a citizen, inhabit the state in which they are elected
o Senate
* 30 years old, 9 years a citizen, inhabit state elected from
o Arkansas State Constitution
* Prohibits otherwise-eligible candidate from appearing on general election ballot if that candidate has already served three terms as Senator
- Issue
o Can a state impose restrictions for Senate elections that does not allow a senator to be on the ballot if they have served two terms in the Senate?
- Holding
o No. States can’t impose restrictions.
- Rule
o Powell v. McCormack
* State imposed restrictions are contrary to fundamental principals of democracy in the Constitution, and that people should choose whom they please to govern them.
- Application
o Must reaffirm Powell.
- Discussion
o Voters approved Arkansas constitutional amendment for their House and Senate term limits. 2 for Senate, 3 for House. Or at least, they couldn’t be on the ballot. (write ins?)
* Argue that Constitution sets the qualifications for being a member of Congress
* Does it bar State from adding qualifications, or does it just set a floor?
o Court discusses Powell
* Congress doesn’t have power to add qualifications not established in the constitution
* But this is in the context of congress. Here, it’s Arkansas setting qualifications for their own representatives.
o Court gets to specify time, location and method of elections
* Here, they allow them to run, just not have them on the ballot. BUT, this is more than procedure, this is controlling power on who is on the ballot.
o Ruling
* Court cannot exclude a class of candidates from office
* Allowing the states to do it would allow congress to do it, which would invalidate Powell
o Dissent?
* Since constitution is silent, no express provision, then the states have this power. 10th amendment presumption that the states do have this power, and there isn’t enough evidence to the contrary.
o Overview
* An important example of preemption
Geier v. American Honda Motor Company (2000)
- Facts
o 1984 Motor Vehicle Safety standard.
* Required auto manufacturers to equip most vehicles with airbags.
- Issue
o Does the Act pre-empt state common-law tort action in which the P claims that the D auto maker, who was in compliance with the standard, should nonetheless have equipped a 1987 Honda Accord equipped with a manual shoulder and lap belts which Grier had buckled, collided with a tree and was seriously injured.
* In other words, does a common law no airbag action like the one before us conflict with the Act.
- Holding
o Yes. Conflict. Act pre-empts common law tort action.
- Rule
o Tort – duty to install an airbag when they manufactured the Accord. State tort law imposes the duty.
- Application
o In dissent’s view, ACT sets minimum, and tort supplements it.
* But no, because there are different choices with safety systems in cars and the act intended to make changes gradual over time, that would be disrupted by the state tort action.
- Discussion
o Products liability case. Honda car didn’t have an airbag, passenger says it’s unsafe under tort law. Honda says that they comply with the federal law that says Honda doesn’t have to do airbags, they can do other safety things, which they did do.
* Is there preemption and is there a conflict?
o No explicit preemption in the law that precludes application of state laws by the federal law.
o Ruling?
* Is preempted because Honda deliberately chose to do this passive restraint system rather than airbags. They knew what they were doing, and it would undermine the federal purpose, which was to give them time and whatnot.
* Liberal justices don’t like preemption because it removes all methods of injured party to seek remedy.
American Ins. Assoc. v. Garamendi (2003)
- Facts
o California’s Holocaust Victim Insurance Relief Act of 1999
* Requires insurer doing business in that state to disclose info about all policies sold in Europe between 1920 and 1945.
* Aimed to force payment by defaulting insurers, pay back for holocaust victims
o Reparations
* Clinton and Germany agreed to pay back “those who suffered at the hands of German companies during the National Socialist era”
* Voluntary compensation fund, lots of money, for victims of holocaust
- Issue
o Does the act interfere with the national government’s conduct of foreign relations
- Holding
o We hold that it does interfere with national government’s conduct of foreign relations – statute is preempted by the federal government.
- Rule
o Interference with foreign policy of POTUS
- Application
o Essentially, this extends preemption to the executive branch.
- Discussion
o Insurance relief act, is it in conflict with US president’s agreement made with foreign countries?
* Company, if they want to do business in Cali, they must provide information, if affiliated with so and so… it’s a significant request for information. If they don’t, they aren’t allowed to do business in California.
* US objects to law, interferes with POTUS agreement which is supposedly preempted to deal with the situation. He agreed that he could assure that if companies sue in the US, they would go to Europe courts… It’s like a suggestion or whatever to steer them out of US courts and to tribunals
o Rule
* Types of preemption
* Field preemption
o Intended comprehensive regulation preempts even the gaps, all laws related
* Implied preemption takes two forms
o Impossibility
* Impossible to comply with federal law based on state laws
o Obstacle
* May create obstacles to federal laws
o Dissenters
* Textualist sort of argument, nothing explicit that preempts states.
* Unless clear, presumption is that state law can operate. And it’s not clear here.
o Notes about preemption
* If there is a conflict, federal law wins.
* Types of preemption
o Express
* Key question of intent of congress
o Implied
* Field, conflict
* Presumptions?
o Some justices say that presumption in favor of state, others don’t.
- Appendix problems in the back of the book regarding preemption
o Standing?
* Might be enough, probably needs to be more concrete, particularize, speculative, non-specific. Difficult to determine if she is damaged and therefore difficult to determine if she has standing in this case.
* May have to show that they use the area, or if they would use the area but are scared to, may provide standing.
o Congress have power to pass the law?
* Commerce power, interstate commerce.
* Lopez, 1 channels, 2, instrumentalities, 3, substantial effect on interstate commerce.
o 3. Nature of activity interstate commerce? Possibly, yes. Seems pretty interstate to me. Commercial, economic.
* New York and Prince?
o Targets the states as states. “every state shall” may be questionable about sovereignty
o May have a commandeering question, telling states to legislate and implement this program.
o Sovereign immunity?
* Can’t directly sue the state, but an officer, perhaps. Statute tries to waive immunity, but they don’t have this authority.
o Appendix problem II
* Congress power?
* Instrumentality and people, possibly. Substantial effects, it’s campus safety. Not economic, but I’d think it falls within their power. Also,
* Spending power, campus safety if you want federal funds.
o Coercion? Meh, idk.
* Some other possible issues.. Federal commands, but they may not be attached to federal funds.
o Appendix problem III
* Statue
* Ridiculous. No, congress can’t get to this.
Protecting Interstate Activity
The “Dormant” Or “Negative” Commerce Clause
Willson v. The Black Bird Creek Marsh Company (1829)
- Facts
o Company empowered to make a dam across a creek.
* They started to, which obstructed navigation of the creek (obviously)
o Willson
* Owners of a sloop (some kind of sailboat)
* Ran it into the dam, and Company sued for damages, Willson sued for trespass
* Denies states capacity to authorize construction of a dam across navigable stream (interstate)
- Issue
o Is it unconstitutional?
- Holding
o Nah, it’s fine
- Rule
o Congress power to regulate commerce between the states
- Application
o IF congress passed any act which bore upon the case, such as to regulate the creeks, then it would conflict. But there was no such act. Power not exercised
- Discussion
o Dormant/negative commerce power/clause:
* Congress has power over interstate power. The ENTIRE power. That means that states do not have that power.
* Congress has field preemption over commerce clause.
* Difficult to figure out how the court will apply the framework here.
o Facts
* Co given authority to build dam across the creek by the state
* Wilson owns ships, traveling up creek, broke dam, sued for damaging the dam and trespass. Wilson says no, they didn’t have authority. Argues that they didn’t have the right to build this. Negative commerce clause
o Legal arguments
* Wilson says that congress doesn’t have power to impede interstate commerce.
* Court doesn’t really find jurisdiction. No valid claim here. But he decides to hear it because there are issues relating to the federal question of interstate commerce and the scope of the commerce power.
* Court says that State can regulate because it’s not a major interstate thing, there is substantial local interest.
* Some courts criticize this doctrine because it is judicially invented and is not something explicitly expressed by the Congress
Philadelphia v. New Jersey (1978)
- Facts
o New Jersey Act
* No person shall bring into this state any waste originated outside of the state, except certain things, blah blah, unless commissioner of the state’s environmental department says so.
o Operators of private landfills in NJ didn’t like this.
* Brought suit on the grounds of preemption of interstate commerce
- Issue
o Is this preemption?
* If not, is the law constitutionally permissible in light of the Commerce Clause?
- Holding
o No, it’s not.
* Yes.
- Rule
o Preemption, commerce clause, stuff.
- Application
o Is garbage commerce? Yes. It is not valueless. Congress has power to regulate interstate wastes.
* Congress has power to regulate interstate commerce, but because of the number and diversity of issues, states can take some control if they want.
* So, I guess they could if it was a small local issue, but not on big ones with a substantial interstate impact.
* Substantial local interest here
- Discussion
o State ACT
* No more trash here from out of state
o ISSUE
* Within traditional notions of regulating local health and welfare of the people, substantial state interests
* But other side says they are intruding, expressly discriminating on interstate commerce.
* Founders had these kinds of concerns about creating state isolation
o How to resolve the issue?
* Basic framework: Court says that it looks at cases like this that one state can’t isolate itself economically from other states. Can’t close their boarders with other states.
* If discriminatory on its face toward interstate interests, virtually per se invalid.
o Exception for extreme health threats, such as diseased animals being quarantined
* If neutral but burdens interstate commerce, Pike balancing test:
o 1. What is the nature of the state’s interest/purpose.
o 2. Compare that to burden on interstate commerce.
* Here
* State is closing borders to make it cheaper for in-state trash disposal. But other side says that there are financial concerns
o Court says that it is protectionist in effect, it’s discriminatory on its face. Doesn’t need to use Pike balancing test in this case.
o And it’s not inherently dangerous substance, and even if it was, not uniquely dangerous because it’s already in the state.
Granholm v. Heald (2005)
- Facts
o Challenges to state laws regulating sale of wine from out of state wineries.
* Functionally gives in-state wineries a big advantage over out of states
- Issue
o Commerce clause violated?
- Holding
o Yes
- Rules
o Commerce clause, interstate commerce, congress has power to regulate.
- Application
o Allowing preferential trade is destructive to the commerce clause because…
* Clearly discriminates out of state goods, a position not supported by SCOTUS or the Constitution
- Discussion
o Applying the framework for the last case
* It’s category one, discriminatory on its face
* Exception: 21st amendment that basically states that alcohol is a state issue, and that it creates an exception to dormant commerce clause
* Court says no, it doesn’t. 21st doesn’t trump other interstate commerce doctrine.
o Dissent
* Disagrees about how the 21st amendment doesn’t create an exception. They say it does.
Kassel v. Consolidated Freightways (1981)
- Facts
o Appellee is a common carrier using two kinds of trucks: 40 footer and doubles
o Statute
* Restricts lengths of vehicles, except for Iowa truck manufactures may obtain a permit for longer ones, or if freight is being delivered to an Iowa resident.
* Essentially, vehicles from out of state to out of state is restricted in their trailer length as a matter of transportation safety, says Iowa.
- Issue
o Does Iowa statute that prohibits the use of certain trucks within the State unconstitutionally burden interstate commerce?
- Holding
o Yes. Unconstitutional.
- Rule
o Commerce clause doesn’t invalidate all state restrictions on commerce.
* Extent permissible is not easy to measure.
- Application
o State fails to present any countervailing public health or safety interest
- Discussion
o Facts
* It’s very burdensome, very expensive. And that the trucks aren’t any more or less dangerous. But actually, it requires more vehicles so it’s, in a way, more dangerous to prohibit doubles.
o Discussion
* May even be discriminatory on it’s face, just dressed up like it isn’t.
* Brennan’s concurrence states that the trial shouldn’t really be relevant to determine if its more or less dangerous, or that there is or is not a legitimate safety reason. That’s for them, court shouldn’t be the decider in this.
* Should only get involved if it’s an obvious and false pretext to discriminate against interstate commerce
o The point
* It’s difficult to see if something is truly discriminatory or if it’s neutral. Some may be dressed up to seem neutral, but aren’t.
* And there is disagreements about how much deference that should be given to the state in their claims about interstate discrimination
South-Central Timber Dev. V. Wunnicke (1984)
- Facts
o Alaska required timber from state lands be processed within the state before exportation
* Timber company that exports to Japan says that it impedes their commerce
- Issue
o Negative commerce clause?
- Holding
o Not allowed, violates dormant commerce clause.
- Rule
o If a state is acting as a market participant rather than regulator, dormant Commerce clause places no limitation on its activities
- Application
o Boundary is important to determine between participant and regulator.
* State is more than a mere seller of timber, however. Seller usually has no say over, and no interest in how product is used after sale. Here, purchaser is being told what to do after purchase with the goods/timber. State doesn’t participate in processing.
* Also places burden on foreign commerce. Such burdens are under strict scrutiny.
- Discussion
o Facts
* Alaska sold acreage to private logging companies. Mandated that processing had to be done in Alaska before sent out of state. Timber company that shipped internationally brought suit claiming dormant commerce clause.
o Legal Argument
* Challenge the law based on dormant commerce clause. Prima Facia discrimination because “must use in state facilities”
* State says they are a market participant rather than regulator, which is an exception to the dormant commerce clause.
* Market participant exception
* If the State is buying or selling something, they could prefer in-state parties over out of state parties even if discriminatory on it’s face.
o Ruling
* It’s a problem because, Alaska is not a market participant down the road, or, regulating something not related to their participation.
United Haulers v. Oneida-Herkimer Solid Waste Management Authority (2007)
- Facts
o Trash haulers, flow control ordinance to a particular processing facility
o Facilities owned and operated by state-created public benefit corporation
* Private haulers obtain a permit to collect waste but State would process, sort and send off for disposal
- Issue
o Upheld the rule.
- Holding
o Doesn’t discriminate against interstate commerce.
- Rule
o Generally interstate commerce is denied to the states
* But if there is a substantial local interest, then it’s cool.
- Application
o Uphold ordinance’s incidental burden on interstate commerce because it is essentially a state and local concern. It’s even state-created. That’s constitutionally significant here.
- Discussion
o Facts
* Gov’t says we going to build this plant, to recoup costs, they must bring all trash here for processing
* Haulers saying it’s unconstitutional, they should be able to take it out of state/county
o Legal argument
* Discussing the market participant exception
* Trying to monopolize a market is more a regulation than a participant
o No private company could say that everyone has to bring them their trash.
o But this is a difficult line to walk here between participant and regulator, in some cases or circumstances
* Well, it if you say it is a regulator, it’s going to apply the normal framework for dormant commerce clause
o Facially discriminatory?
o Neutral?
* Pike balance between state interests vs burden on interstate commerce
o Scalia and Thomas
* Dormant commerce clause is stupid.
o Westland creamery case (note)
* Court has said that subsidizing in-state businesses is not unconstitutional
* Applying taxes that apply universally to sellers
* But here, they applied a tax for all milk sales at the dealer level. State used that money to subsidize in-state producers, and SCOTUS said no. Was unconstitutional to link the two, and it made the tax not neutral and prima facia discriminatory.
Article IV, §2: State Privileges and Immunities
United Building and Construction Trades Council v. City of Camden
- United Buliding v. City of Camden, discussion
o City passed ordinance required 40% of contractors working on city projects be residents
o Union challenged
- Issue
o Would it violate Dormant commerce clause? Challenge also on privilege and immunity clause.
- Ruling
o Yes. It is facially discriminatory. But preference violates the provision to provide equal privilege and immunities.
- Rule
o DCC framework plus participant exception.
- Application
o Lower court said laws only apply to laws passed by state, laws that discriminate on the basis of state citizenship. But no, municipal. But municipal is like the state.
* Local government is part of the state. Focus on city versus out of state residency doesn’t matter. Still primarily out of state folks targeted.
* This clause is about non-discrimination, means that it would be a fundamental privilege to apply under the privilege and immunity clause.
* Like rights to practice professions and whatnot which are protected with fundamental advocacy. Bill of rights, too.
* Not a source for substantive rights. Just sort of a fluff clause, for the most part.
o Corporations can’t invoke this right, as it talks about individual rights and stuff
o Congress can authorize things that violate dormant commerce clause, because this fills in the gaps. Just that states can’t do it by themselves.
* States may override P and I with good reason
The Fourteenth Amendment
Origins
Dredd Scott v. Sandford (1856)
- Very Brief Summary
o It held that the federal government had no power to regulate slavery in the territories, and that people of African descent
* (both slave and free) were not protected by the Constitution and were not U.S. citizens.
- Discussion
o Will Scott be recognized as a citizen and have the right to bring suit in federal court?
* Ultimately, Scott wanted to be recognized as free person, because he spent time in a free territory after his ‘master’ brought him there.
o Blah, it’s a horrible and racist thing.
o Two big picture holdings
* Slaves and descendants can never be citizens of the united states
* Congress lacks the power to politically resolve the slavery question.
1. The “State Action” Requirement
The Civil Rights Cases (1883)
- Facts
o Summary of cases, several combined, with essentially the same issue
- Issue
o Constitutionality of the law that all persons shall be entitled to full and equal enjoyment… of stuff regardless of race or color, or previous condition of servitude.
o Does congress have the power to regulate stuff?
- Rules
o Today you could just use commerce power. Back in the day, they allowed it under 14th amendment, can enforce protections of section one by requiring private businesses and whatnot the equal protection ascribed to them by the constitution
- Discussion
o Can prohibit discrimination by the state or by private entity?
* Essentially, there is a state action requirement under 14th amendment
* Requires the state not allow or conduct discrimination.
o Since there is no state action, they can’t use the 14th amendment. There is no state action in the middle of this. No state action, means no 14th amendment protections or applications.
o Other argument regarding 13th amendment
* Simply states slavery or involuntary servitude should not exist (except for criminal punishment)
* This applies to all, private and public.
* But this amendment doesn’t give the state power to prevent people from being dick holes on the basis of race. Only effects slavery stuff, or things directly related to slavery.
* Harlan disagrees/dissents because 13th amendment may give some leeway because it is a badge of slavery, in his opinion
o What is still true today is the state action part. That’s still relevant. Although today, congress does reach via the commerce clause. Also the 13th if “badges or incidents of slavery” but that doesn’t happen often anymore
Shelly v. Kraemer (1948)
- Facts
o Restrictive covenant that the land can’t go to non-whites
o This was challenged, or enforcement was challenged by a non-white buyer
- Issue
o Is it state action to enforce this restrictive covenant, and a violation of the 14th amendment, specifically, does it constitute state action?
- Rule
o Generally, state action is separate than from private actions by citizens
- Application
o Might not be a statue, but the judge is a state official. Can the judge enforce the agreement? Does that constitute state action?
* Still within the realm of state action
o Also, commerce clause could reach this.
* Also, covenants date back to slavery times. So 13th amendment, perhaps as a “badge of slavery”
Edmonson v. Leesville Concrete Company (1991)
- Facts
o Preemptory challenges to remove black jurors in a civil suit
o If the motive is race, it’s a violation
- Rule
o Connections to state law?
o State action or a private parties only?
- Application
o Prosecutor is the government, and he may certainly be state action.
o But this is a civil case, so it’s a different question to see if it applies here
- Test
o 1. Source of the activity based in state law?
* Yes. Preemptory challenge is authorized under state law. Statutory source for preemptory challenges.
o 2. Is this a traditional state junction?
* Yes. Jury is a traditional state function, and is part of the nature of a traditional governmental function.
o 3. Aggravated by government authority?
* Yes. Injury caused was more severe because it’s permitted within the courthouse. Government’s role makes the discrimination worse.
o SO
* It is deemed state action because it fits under these three qualifications of state action
- Dissent
o Private parties, not everything in a court is judicial action.
- Dissent (Scalia)
o What if a minority wants to maximize minority jury? It’s a two way street, that race can’t come into it.
Deschaney v. Winnebago County Services Department of Social Services (1989)
- Failure to act doctrine regarding 14th Amendment
o 1. Special relationship
o 2. Danger creation
* Special relationship, such as custody
* Danger creation
- This method of considering tort law
o Also where someone has tried to sue the state for tort on failure to act, same DeShaney rule is applied
To determine if state may do stuff,
- Is there state action?
o What rights may be asserted?
* Due process, privileges immunities, equal protection
2. Federal Privileges Or Immunities
Slaughter-House Cases (1873)
- Facts
o Butchers upriver of new Orleans
o Health concerns for the people in the city
o Outside of jurisdiction, legislature passes act to put slaughtering with another company downriver
* Have granted a monopoly to the significant economic detriment of other butchers
- Issue
o Privileges and immunities 14th amendment
- Rule
o Relevancy of 14th?
* A privilege or immunity that includes pursuing occupation.
* Article 4 also has the clause, but 4 doesn’t apply to intrastate claims.
- Ruling
o 14th applies to rights of US citizens
o State citizens have a matter of choice
* Right to pursue occupation is an incident of state citizenship, not something guaranteed as a US citizen.
- Discussion about the rule
o Dual citizenship
* US citizen
* 14A
* Rights:
o Right to vote, petition government, access to ports, access to federal courts, other foreign protections and whatnot, petition for redress, etc.
* State citizen
* Art. 4
* Rights:
o Pursuing education, employment, etc.
- Application
o Butchers are a state right, and so the butchers can pass this law, and butchers can move to a new state if they don’t like it.
- The point of this case
o 14th amendment is largely useless in claims against the state
* unless they are under the umbrella of the federal government
o Has moved litigation from the privileges and immunities clause to other provisions such as due process
- Dissent
o Would look at the 14th broadly, and apply it here. Deny the difference or differentiation between US and state citizenship stuff.
Saenz v. Roe (1999)
- Facts
o Cali limits welfare benefits for recent in-state recipients until they have stuck around for 12 months
o Objection, that it limits the privilege and immunity of travel and free migration
- Issue
o Right to travel?
* Comes from
* 1. Literal right to travel - Right of a citizen to go from one state to another. (?)
* 2. Equal treatment - Right to be treated as a welcome visitor (Art. 4 P and I clause)
* 3. Right to become a resident. (14th P or I clause)
- Discussion
o I zoned out for a while
* Some debate about slaughter-house cases. Dissent says that it shouldn’t be valid law at all
* Argues that all fundamental rights should be under the 14th amendment.
o But also that statutory programs don’t qualify as fundamental rights under privilege or immunities clause.
3. Procedural Due Process
Cleveland Board of Education v. Loudermill (1985)
- Issue
o What pretermination process must be accorded a public employee who can be discharged only for cause
- Facts
o Board hired L as security guard. L said he never convicted of a felony, but that was a lie.
o L was fired, L sued under the ‘for cause’ determination, saying that he didn’t have due process
- Rule
o Property interests stem from independent source such as state law. Due process is conditioned upon legislatures choice of procedures for its deprivation.
- Application
o Ohio law creates property interest. Process was adhered to.
- Discussion generally
o Must be the government that deprives someone
o Is there a property, life, liberty interest
* Locking someone up, killing someone, or less extreme thing like government employees or students being disciplined.
o What process is a person entitled to?
- Discussion on this case
o Facts
* Did not disclose felony conviction, and was fired without a hearing prior to the dismissal
* P argues that Ohio says he has a property interest, and requires a hearing before being dismissed.
* Court says that this is a property interest that is subject by due process for its removal
o Rule
* State law defines what is a property law, and so employment may be property interest
o Due process in legislative context?
* Due process is the legislative process to determining a process for enacting laws.
Mathews v. Eldridge (1976)
- Issue
o Whether due process clause of 5th amendment requires that prior to the termination of Social Security disability benefit payments the recipient be afforded an opportunity for an evidentiary hearing.
- Rule
o Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 5th or 14th amendment
o Some form of hearing is required before an individual is finally deprived of a property interest. Opportunity to be heard ‘at a meaningful time and in a meaningful manner’
o Mathews v. Eldridge Factors:
* Identification of the specific dictates of due process generally requires consideration of three distinct factors
* 1. The private interest that will be affected by the official action
* 2. The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional substitute procedural safeguards
* 3. The Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
- Discussion
o Facts
* Disability benefits stopped, dude challenged sufficient due process
o Rule discussion
* May be an interest once given, so needs process to take away. Question is how much process must be given.
o Test from above discussed
* In this case, process was sufficient to constitute due process.
* The test is pretty vague and subjective, though.
Hamdi v. Rumsfeld (2004)
- Issue
o The legality of the Government’s detention of a United States citizen on United States soil as an “enemy combatant” and to address the process that is constitutionally owed to one who seeks to challenge his classification as such
- Holding
o Hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that such a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.
- Rules and Application
o The proposed ‘some evidence’ standard is inadequate. Process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short
o The “process” Hamdi has received is not that which he is entitled to under the Due Process Clause
- Discussion
o Dude designated enemy combatant. Was moved from Gitmo because he was a US citizen, so moved to US territory
* Government gives him a kind of process, but the burden is on him. Has the presumption of guilt rather than innocence
o Hypo
* Dismiss cheating on an exam
* Is it property?
o Cases say yes. There is a property interest in continuing, there needs to be a process.
* What is due process?
o Hearing by neutral arbiter, and it can be a fairly elaborate process.
* Harassing another student at a school function?
o What would this do to the gov’t if there was such an elaborate process?
4. Substantive Due Process
a) Introduction: The Rationale
Pierce v. Society of the Sisters (1925)
- Facts
o Oregon act requires people with kids to send them to public school, and a failure to do so is a misdemeanor.
o Appellee Society cares for and educates kids. It’s a religious society.
o The Act would require them to send kids to public school instead, and so they challenge the law
* Interferes with liberty of parents and guardians to direct the upbringing and education of their children. So it’s due process claims about freedom and whatnot.
- Issue
o Is it a violation of due process rights?
- Holding
o It does infringe on their liberty. Statute does infringe on their business and property, and therefore violates due process.
b) Economic Rights
Lochner v. New York (1905)
- Facts
o NY statute that limited work hours for employees of bakeries.
- Issue
o Does statute violate due process rights?
- Holding
o Yes
- Rule
o Due process
* Limits on it, some allowance for deprivations if it is an act done for the safety, health, morals, and general welfare of the public.
* Must be a valid exercise of police powers.
- Application
o Statute does interfere with contract between employer and employee
* That’s a protected right under the 14th amendment, but is done to protect public welfare
o Court says no valid reason for restricting bakers’ hours.
West Coast Hotel Co. v. Parrish (1937)
- Facts
o Act
* Conditions relating to health and morals of minors and women.
o Employee of hotel sues for wage that it should have been under state law, hotel owner says no and says law violates due process.
- Issue
o Is minimum wage law for women and minors constitutional under due process?
- Holding
o It’s good law.
- Rule
o Due process, but limits for protection of health, safety, morals, and welfare of the people.
- Application
o Is not an overreach, is a valid protection of workers’ interests.
State Farm v. Campbell (2003)
- Facts
o Auto accident, punitive damages were crazy high, like 145 million with 1 million compensatory.
- Issue
o Measure of punishment a state may impose upon a defendant in a civil case a violation of due process?
- Holding
o Yes. It can be, and it was a violation in this case.
- Rule
o Punitive damages used to deter
* Due process, can’t deprive unless serves public welfare or whatever.
- Application
o Court unable to determine concrete limits on ration between harm, potential harm and punitive damages, but generally not exceeding a single digit ratio (9/1 max).
* May be determined by what courts find for similar punitive measures in other courts or whatever.
- Discussion
o Great deference to the state, generally, in current day.
o Things to take away
* Court does care about punitive
* And the factors
* Ratio
* Reprehensibility of harm caused
* Comparable historical punitive awards
o Takings clause
* Eminent domain, must compensate for it and it must be necessary.
* Some questions about restrictions or regulatory takings, but the court has wrestled with this for a while now.
* Question of what is a public use, in terms of taking something and giving it to private industries.
c) The “Incorporation” Doctrine
McDonald v. Chicago (2010)
- Facts
o Law that supposedly violates 2nd amendment gun rights
- Issue
o Is the right to keep and bear arms protected under due process as well as 2nd amendment?
* Or generally, what due process rights should be incorporated to the states as matters of due process?
- Holding
o Due process incorporates the right.
- Rule
o 2nd amendment allows a person to keep firearms for self defense
o Different judicial philosophies about if amendments are also under the 14th
* Some say due process is totally separate from other amendments.
* Only rights protected by due process are “included in the conception of due process”
* Could a civilized society exist that didn’t recognize the rights, test
* Bill of rights were not included
* Even when right did fall, protection against state infringement was different than protection by the federal government.
- Application
o Must have due process before depriving someone of their right to own a firearm.
- Discussion
o Lots of debates about what is or is not incorporated into due process.
* Generally, it depends if they are determined to be “fundamental” or not
o Reverse incorporation for 14th amendment, equal protection under the law.
o Individual due process rights protected
d) “Privacy” Rights
Griswold v. Connecticut (1965)
- It’s a crime if you use any drug to prevent conception
o Anti-birth control law
- Right to Privacy
o Majority says that it’s in the shadows of the bill of rights to have privacy
* Harlan, 14th amendment due process. Allows recognition of fundamental rights.
* Harlan’s concurrence is, going forth, the standard of the court.
- Dissent
o That it’s not a right, and there is no right to privacy
Roe v. Wade (1973)
- Discussion
o Right or privacy here?
* Constitution doesn’t contain an explicit right to privacy here.
* Right to life is balanced between the two, unborn child, and interests of the mother to her body.
* But no right to life because law doesn’t recognize it until actual birth of the child
* Avoids the difficult (impossible) question of when life begins – conception or birth
o Levels of equal protection
* Strict scrutiny
* Narrow, very difficult standard to meet the state law, state must have very good reasons for doing what they are doing.
- Result
o 1st trimester, no regulation
o 2nd trimester, regulations for maternal health
o 3rd trimester, can ban with exceptions to preserve the health/life of the mother
- Why
o Balance of viability, if the life is viable outside of the mother. The state’s interest may be greater during later months.
- Dissent
o Argues that she doesn’t have or have much of an interest here.
Planned Parenthood v. Casey (1992)
- Penn law
o Has to give spousal notice
o Record keeping requirements imposed on providers
- Partially overrules Roe v. Wade
o The court rejects the trimester system
o Can be regulated based on undue burden standard, but this is more relaxed than the Roe v. Wade standard
* Test becomes:
* 1. Pre-viability – test is undue burden
o Undue burden means a substantial barrier to a woman obtaining an abortion
o A state regulation has the purpose or effect of placing a substantial obstacle of seeking an abortion of an unviable fetus
* 2. Post-viability
o States can ban as long as they don’t remove despite the health of a woman
Gonzales v. Carhart (2007)
- Facts
o Partial-birth abortion ban act of 2003
* Fed statute regulating abortion procedures
* Applies to pre and post viability
* This is gross, and I don’t want to have to read it.
- Issue
o Does the act impose an undue burden because its restrictions on the 2nd trimester abortions are too broad
- Holding
o Not on it’s face.
- Rule
o State may use regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including of the unborn.
- Application
o Lots of stuff about respect for life, and that the burdens aren’t so hard. It’s only a single type of late term pre-viability restriction.
* Alternatives are available to this procedure that is less devaluing of human life.
Moore v. City of East Cleveland, Ohio (1977)
- Facts
o Cleveland housing ordinance
* Limits occupancy of a dwelling unit to members of a single family
o Appellant lives in Cleveland with son and grandsons.
* Notice of illegal occupant because she was taking care of her grandson, who’s mother died.
- Issue
o Violation of due process family liberty rights type stuff?
- Holding
o Yes. Violation of due process.
- Rule
o Land use regulations violate DPC if they are clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals or general welfare.
- Application
o When a city undertakes intrusive regulation of the family, usual judicial deference to legislature is inappropriate… freedom of personal choice, marriage, family, protected by DPC.
* Private family realm, strict scrutiny.
- Discussion
o State interest?
* Yes. Zoning is an interest for public welfare.
o Defining the family?
* Generally, it’s a personal thing. Intrusion on liberty interest to be a part of their own family
* Polygamy? Not protected, although I kind of wonder why
* Reynolds case, gov’t can outlaw because… isn’t traditional nuclear family, public welfare?
o Notes and problems
* Unwed father right to custody when mother dies? (and similar situations)
* Would look to history, tradition, state laws, importance of the right, balancing interests, policy, balancing liberties stuff.
Troxel v. Granville (2000)
- Facts
o Washington Code
* Anyone can petition court for visitation rights for best interest of child.
o P had some kids, blah blah, stuff.
* Petitioned for visitation rights, not opposed but asked for limited visitation rights.
- Issue
o Violation of Due Process
- Holding
o Yes. Infringes on right of custody, a fundamental liberty protected under 14th due process clause.
- Rule
o Right of parents over kids is a fundamental liberty protected by due process.
- Application
o Statute is super broad. The petitioning parent can petition, and custodial parent’s arguments are offered no discretion to the court. And so that sucks.
- Discussion
o Grandparents, very involved in child’s lives. Something happens to one parent, and the remaining parent doesn’t want the grandparents to have the same kind of access.
* There, G’parents want a few weeks or weekends. Mother says 1 day per month, no over night. Very far apart in requests. Court says picks a middle ground with visitation standards.
o J. Stephens point in dissent
* Should not strike down because most folks that seek visitations will be related, and they ignore the interest of the child.
o J. Scalia
* Parents raise children, but doesn’t’ mean constitutional rights in this setting.
o J. Kennedy
* Also best interest of children
o This is a big area of litigation. Most states have visitation statutes to avoid constitutional issues
Lawrence v. Texas (2003)
- Facts
o Dudes caught banging. Arrested because it broke Texas law.
- Issue
o Is statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct a violation of 14th amendment?
- Holding
o Yes. Unconstitutional.
- Rule
o 14th amendment protects from unwanted intrusions, autonomy and freedom of thought, belief, expression, etc.
- Application
o Privacy in the home, it’s a regulation of the most private and intimate of human conduct.
- Ruling
o Is a matter of privacy
* Overrules Bowers because that case misunderstood the issue. It isn’t about the act, it’s about privacy. No fundamental right to engage in sodomy, but there is a right to privacy and do stuff with other consenting adults.
Cruzan v. Director, Missouri Department of Health (1990)
- Facts
o Cruzan lost control of car and wrecked. Almost died, saved, but brain damage. Feeding tube and whatnot, but rehabilitation largely ineffective. Was a persistent vegetative state.
o Parents requested termination of life support, resulting in death. Hospital wanted court approval beforehand.
- Issue
o Right of Cruzan to withdraw treatment under these circumstances?
- Holding
- Rule
o Bodily integrity is fundamental. Patients are presumed to have the right to refuse treatment.
o 14th amendment no deprive life liberty property without due process.
* Protected right to refuse unwanted treatment is inferred from prior decisions and the 14th
* Any countervailing state interests may override, however.
- Application
o Here, a person could refuse treatment when competent. But P isn’t competent. So, substituting judgment of parents/guardian/family is sufficient to provide consent to withdraw treatment/refuse treatment.
- Discussion
o Liberty interest. State interests. Patient choice v. right of state to life, potential abuse by family, etc.
* Balance of interests
Washington v. Glucksberg (1997)
- Facts
o Washington Law
* Guilty of promoting suicide if knowingly causes or aids suicide. It’s a Felony, punishable by 5 years imprisonment and up to 10,000 fine. Withholding or withdrawal of life support doesn’t constitute assisting a suicide.
- Issue
o Washington’s prohibition against causing/aiding in suicide offense 14th amendment due process claim?
- Holding
o Not a violation.
- Rule
o Due process clause
* Protects fundamental rights rooted in nations history and tradition, and implicit in concepts of liberty
o Common law states that it’s a crime to assist in suicide.
- Application
o It’s not a question of withholding like in Cruzan. It’s actually helping. And the state has an interest in protecting people from suicide and whatnot. It’s not a fundamental right based on culture and common law. So no, it’s not a liberty protected by due process and the 14th amendment.
- Discussion
o Interest to protect human life, medical profession, protecting groups from abuse.
* Dutch experience?
* Allowed assisted suicide, but had documented of involuntary euthanasia. So, that seems bad.
DA’s Office for the Third Judicial District v. Osborne (2009)
- Facts
o DNA testing is pretty good for stuff.
o Here, violent crime 16 years ago.
* 2 dudes solicited sex from prostitute. Pulled out gun, raped, shot, murdered, but didn’t die.
o Alaska enacted legislation specific to DNA testing
* Accessible to prove innocence.
- Issue
o Due process right for accused D to have access to DNA findings?
- Holding
o No. Not due process
- Rule
o 14th amendment due process.
* Applies to liberties and whatnot. Fundamental rights only, though. Balances state interests.
- Application
o D has less of an interest in DNA evidence because D is presumed innocent. It is burden of P to show that D is guilty beyond a reasonable doubt, and so may not have same interest as a convicted person as intended by the statute.
* Not as much of an interest in due process to have access to that DNA information, then.
- Handout
o What did the SC hold in R v. Wade?
* That there is a liberty interest in the women’s right to terminate the pregnancy.
* Is related to a privacy right, 14th amendment liberty interest
o Interest
* Argue it’s more about federalism and separation of powers, say detractors.
o Persons?
* No.
o Exception for life/health is narrow.
* Maybe, maybe not. Is continually fought about it.
* Roe Casey and Gonzales are the trio of cases in this area that are worth knowing about here.
- Discussion
o Blah blah blah.
5. Equal Protection
a) Rational Basis Review
Overview
- Three tiers of Equal Protection analysis
o Strict Scrutiny
* When dealing with a suspect classification like race, or a fundamental right such as the right to vote, Court has applied strict scrutiny to governmental classification.
* Government must have compelling interest in the subject matter and it must narrowly tailor its classification to fulfill that interest
o Middle Tier Scrutiny
* In dealing with gender classifications, it has applied this
* Requires at least an “important governmental interest” which is “closely related” to the government’s classification
o Rational Basis Scrutiny
* Requires only that the classification be rationally related to some legitimate governmental interest.
- Theory of Heightened scrutiny
o If the law is directed at prejudicing a group or minority, may be unconstitutional despite being on its face, within the scope of constitutionality.[United States v. Carolene Products (1938)]
Railway Express Agency v. New York (1949)
- Facts
o New York city traffic regulation
* No person shall operate advertising vehicle. Exception for vehicle engaged in usual business or regular work of the owner and not merely used for advertising.
o Appellant
* Nation wide express business operating trucks in new york and selling extra vehicle space for ads
o Reason for law?
* City says it’s a distraction to drivers and is a public safety issue
*
- Issue
o Is it a violation of equal protection clause to allow regular owners to have ads on their vehicles but not to sell ad space on them?
- Holding
o Yes. Violation of equal protection clause.
- Rule
o Equal protection clause
* Unequal treatment on the basis of a distinction must be justified by the aim and purpose of the regulation.
- Application
o Would have to show that the advertising displays that are exempt have less incidence on traffic than those of appellants.
* They don’t. Duh.
Armour v. Indianapolis (2012)
- Facts
o Indiana Statute, Barrett Law
* Allowed cities to impose upon benefited lot owners the cost of sewer improvement projects
* Permitted owners to pay immediately in a lump sum or in installments
* Had new payment method in 2005, forgave installments not yet paid.
* Those who still owed Barrett Law assessments would not have to make further payments, but those who already paid would not receive refunds.
o P were those who paid the full assessment and asked for partial refunds.
* City denied, saying it would be unfair to others who paid.
- Issue
o Did giving some loan forgiveness and refusal to refund others violate equal protection clause?
- Holding
o No. It’s fine.
- Rule
o If no fundamental right or suspect classification, falls within following scope
* Law is constitutionally valid if there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.
- Application
o Does not involve a fundamental right or a suspect classification
* Refunds and whatnot would have been very complex to figure out. And expensive.
New York City Transit Authority v. Beazer (1979)
- Facts
o Refuses to employ persons who use methadone
* Methadone is a narcotic used to “cure” heroin addiction
* Some evidence that junkies, you know. Not good people to have employed.
o Litigants
* Brought suit because they were methadone addicts, brought class action suit.
* Brought evidence of success of methadone treatment
- Issue
o Violation of equal protection clause?
- Holding
o Yes.
- Rule
o Cannot bar persons from employment on the basis of criteria which have no rational relation to the demands of the jobs to be performed
- Application
o It’s too broad. It discriminates too generally, and the methadone treatments have no bearing on ability to perform.
b) Racial Classifications
Plessy v. Ferguson (1896)
- Facts
o Louisiana statute
* Required RR companies to provide separate but equal accommodations for whites and non-whites
o Plessy
* Part black. Bought a ticket, and took a vacant white seat. Was asked and refused to move.
* Imprisoned, charged with violating state law
- Issue
o Violation of equal protection clause?
- Holding
o No
- Rule
o All persons born or naturalized in the US are citizens… due process… equal protection.
* Court says that it enforces equality before the law, but not to abolish distinctions between the races.
- Application
o They were separate, but equal accommodations.
Brown v. Board of Education (1954)
- Facts
o Desegregation of schools. P seeking it.
- Issue
o Separate but equal a violation of the equal protection clause?
- Holding
o Yes. Violation. Desegregation is good.
- Rule
o Due process clause.
- Application
o Cannot be separate but equal. Create inherent difference. Overrules Plessy v. Ferguson
* Separate is inherently unequal
Strauder v. West Virginia (1879)
- Facts
o P, black guy, indicted for murder
o Contends due process violation because no black folks were able to serve on his jury, supposedly a jury of “his peers”
- Issue
o Is it a violation of due process to exclude categories of people from jury service?
- Holding
o Yes.
- Rule
o Equal protection of the laws.
- Application
o It’s hard to comprehend how it can be said that while every white man is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or rather, selected without discrimination against his color, a “negro” is not, the latter is equally protected by the law with the former.
Yick Wo v. Hopkins (1886)
- Facts
o California ordinances
* Unlawful to have laundry in San Francisco, without consent of a board of supervisors, unless located in brick or stone buildings
o Sue for discrimination because they are Chinese
- Issue
o Violation of equal protection clause?
- Holding
o yes
- Rule
o Equal protection clause
- Application
o Naked and arbitrary power given to the board.
* No valid reason to do this, even though not prima facia discrimination
Korematsu v. United States (1944)
- Facts
o Act of Congress
* Japanese Internment camps
- Issue
o Violation of equal protection clause?
- Holding
o No
- Rule
o Strict scrutiny for restrictions that curtail civil rights of a particular racial group
- Application
o Yeah, but it’s a war and they need to be able to do this stuff.
Loving v. Virginia (1967)
- Facts
o Restriction on interracial marriage
- Issue
o Violation of equal protection clause?
- Holding
o no
- Rule
o Equal protection
- Application
o Would be strict scrutiny.
* Family and marriage normally the territory of the state
* No legitimate state purpose in doing it that makes it worthwhile.
Johnson v. California (2005)
- Facts
o California Department of Corrections policy
* Racially segregating prisoners in double cells
* Say it is for prevention of prison violence
* There is a lot of racial violence in the prisons
- Issue
o Violation of equal protection clause?
- Holding
o Maybe. The lower court needs to reevaluate because the lower court didn’t use strict scrutiny. Still, it looks like it could pass the test. It’s narrowly tailored.
- Rule
o Equal protection
* Strict scrutiny, compelling government interest when it on its face is a race thing.
- Application
o There is a compelling interest for strict scrutiny, maybe. Will need to be remanded.
- Discussion
o California says it shouldn’t be strict scrutiny
* Normally it always uses strict scrutiny for race segregation prima facia
* Cali says rights are limited in a prison, shouldn’t be SS
o Other districts don’t do this and they still take care of the problem
- Dissent
o Should defer to administrative judgment
o Also, this is a prison so it’s different
o And there are compelling interests that pass strict scrutiny test.
Washington v. Davis (1976)
- Facts
o Police recruiting procedure
* Written test that excluded a disproportionately high number of Negro applicants
* The test was uniformly applied, however, and the police department didn’t do any other discrimination stuff
- Issue
o Violation of equal protection clause
- Holding
o No.
- Rule
o 14th amendment equal protection clause
* Prevention of official conduct discriminating on the basis of race.
* Exclusion is a violation of equal protection
* Even if not prima facia, but invidious discrimination
- Application
o Here, was no ill intent or consequential discrimination.
- Discussion
o Test for determining who gets promoted in Police Department
* Disproportionate amount of whites passing and not non-whites
o Difference between Yick Wo?
* There, it was intentional discrimination. Here, it’s objective and not intentional.
- Concurrence
o Should not be a standard universally shown, and effect may be evidence of the intent. Can take effect into consideration even if seemingly uniform/non-discriminatory
The Coalition for Economic Equity v. Wilson (1997)
- Facts
o California Civil Rights Initiative, Constitutional amendment to their constitution
* Outlaws affirmative action
* P claims it denies women and minorities the right to seek preferential treatment from the lowest level of government.
- Issue
o Violation of equal protection?
- Holding
o No.
- Rule
o 14th equal protection clause
* Can’t disadvantage a group by making it more difficult to enact legislation in its behalf
* Distinction between race discrimination and neutral treatment of race related matters
* States have wide latitude to create authority, and confer authority upon them.
- Application
o The amendment does not impede equal protection
* It just denies preferential treatment, which is different in the eyes of the court.
- Discussion
o General notes about the case
* This case should probably be at the end of the section, but it’s not
* Issue is currently before the supreme court.
o Important stuff about the case
* This law essentially says no affirmative action in the state
* Classification not based on race. It says gov’t can’t use race as a classification.
o Counter argument: The proposition singles out race and gender preferences, and takes their power away, by taking away their power to argue for affirmative action cases that disempowers minorities.
* It’s not easy to justify affirmative action, and so refusing to have them is not a constitutional violation
c) Affirmative Action
City of Richmond v. J.A. Croson Company (1989)
- Facts
o Minority something business thing, city ordinance
* Gave at least 30% to minority owned businesses – city contracts
- Issue
o Violation of equal protection clause?
- Holding
o Yes
- Rule
o 14th Equal Protection Clause
- Application
o The plan denies come citizens opportunity to compete for a fixed percent of contracts based only on race
* If so, needs strict scrutiny. Prima facia race discrimination here.
* All classifications of race are potentially harm due to stigma, and so even if positive for a minority, must be under strict scrutiny
* And this fails to meet that standard.
- Discussion
o The case
* Gave preference to minority businesses for city contracts
* More weary of state and local government affirmative action than federal
* Pass strict scrutiny?
o Not really. No justification or compelling interest to show there is a harm, and why this would remedy the situation.
* Remedying past discrimination doesn’t satisfy unless the law directly biased against this kind of thing, like construction contracts.
* Not narrowly tailored, it’s a random percent, not based on specific facts.
* Court doesn’t like rigid quotas or racial balancing.
o Level of scrutiny for affirmative action?
* Strict scrutiny, says a plurality
* It’s still based on race, even if benign or remedial. It’s best to use strict scrutiny all the time, as a rule. And every time gov’t uses race, there is a risk of harm.
- Dissent
o Difference between using race for good reasons than for bad ones, so governments should have more flexibility to have affirmative action.
- Generally
o Fulloflove was about the first case dealing with the issue here. And then this case.
- More talking about stuff
o Compelling government interests may be
* In remedying entity’s own past discrimination
* But not wide social discrimination, just the stuff that you’ve done, and only for the purposes of balancing it out.
o Narrow tailoring
* Quotas are bad because they are not narrowly tailored.
* No automatic points
* Plus factor-whole file review is okay
Grutter v. Bollinger (2003)
- Facts
o Michigan Law school admissions
* Race as a factor for admissions
* Looking for diversity
- Issue
o Violation of equal protection clause?
- Holding
o No
- Rule
o Equal protection clause
* Universities must be open to all
- Application
o Law school sought to have a diverse class, to have diverse
* No specified percent of particular group. Just seeks to have a diverse student body, not specific limits or whatever. That’s important.
* So, it does fit for strict scrutiny, but it’s narrowly tailored and fulfills a compelling government interest.
- Discussion
o Diversity counts as a compelling government interest.
* Must be a kind of diversity that is helpful in achieving some kind of good.
o Is narrowly tailored
* Court says this is narrowly tailored because it’s not a quota or strict thing. It’s only a factor for consideration, as it may be.
* Racial balancing is also unacceptable.
* Compelling interest to avoid racial isolation (diversity?)
Parents Involved v. Seattle School Dist. No. 1 (2007)
- Facts
o School districts’ plan
* To rely on race to determine which public schools certain children may attend
* Classified as white, nonwhite, black or other.
* It’s used to make school assignments to balance the racial composition of the schools
- Issue
o Do public schools that have not operated legally segregated schools or has been found to be unitary may choose to classify students by race and rely upon that classification in making school assignments?
- Holding
o Violation of equal protection clause.
- Rule
o Should be under strict scrutiny for laws does anything on the basis of racial classifications
* Must have compelling gov’t interest and narrowly tailored
- Application
o Strict scrutiny
* Has interests in diversity.
* Plans limited?
* Not really. Racial classifications are not narrowly tailored in this case.
Fisher v. University of Texas (2012)
- Facts
o University admissions
* Uses race as an element of admission, as approved by Grutter
* Guarantees admission to Texas students in the top 10% of their high school class
* Increasing numbers of minorities admitted.
* It didn’t by its terms admit on the basis of race, but minorities were its purpose
- Issue
o Violation of equal protection?
- Holding
o No.
- Rule
o Bla blah, the same
- Application
o Law’s effects
* Increase in overall minority enrollment, but they are clustered in certain programs, and is not holistic
* Almost equitable to a quota, which is unconstitutional.
* It’s not narrowly tailored
* It doesn’t need this many minority students. It’s excessive and ineffective.
o But maybe just a little. It’s really on the line. There is an interest here, so meh (says the court).
- Discussion
o It uses the plus factor, depends on the whole file.
* The purpose was obviously aimed at minorities, but it passes the strict scrutiny test. Is narrowly tailored and for a compelling government interest.
d) Gender
Craig v. Boren (1976)
- Facts
o Oklahoma statute
* Different alcohol regulations for men and women
- Issue
o Violation of equal protection clause?
- Holding
o Yes. Invidious discrimination.
- Rule
o Classifications that distinguish genders are under scrutiny
* Must serve important governmental function and be substantially related to achieving those objectives.
* Archaic and overbroad generalizations couldn’t justify gender discrimination
- Application
o There are differences in how genders process alcohol, and it’s a safety issue of sorts. For drinking and driving.
* But there is little to no relation between the act and the harm sought to prevent. It is very broad. No reason to limit alcohol purchase than other alcohols.
United States v. Virginia (1996)
- Facts
o Military school in Virginia
* Precludes women from attending.
- Issue
o Violation of equal protection clause?
- Holding
o Yes
- Rule
o If denial of opportunity based on gender,
* Must be exceedingly persuasive justification. Rests on the state. Must show
* Important governmental objectives that the restriction/categorization/exclusion is substantially related to those objectives.
o Heightened standard of review
- Application
o D says citizen-soldiers methodology is inherently unsuitable for women.
* Some women are fully able to do the things the school requires, but doesn’t allow or consider any of them because of their gender.
* There might be some differences between the gender, but women are excluded from many opportunities because of this. Also, it doesn’t serve much of a legitimate government purpose.
Michael M. v. Superior Court of Sonoma County (1981)
- Facts
o California statutory rape law
* Female under 18, unmarried, is statutory rape.
* Makes only men liable for statutory rape.
- Issue
o Violation of equal protection clause?
- Holding
o No. It’s valid.
- Rule
o Can’t make overbroad generalizations based on sex entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class
* Can uphold if it realistically reflects that the sexes are not similarly situated in certain circumstances.
- Application
o Serves the purpose of discouraging the conduct rather directly. Legislators concerned with teen pregnancies. Also, moral and religious attitudes about premarital sex.
* And of course, only women can get pregnant. And they suffer virtually all the harm involved.
* It isn’t overly broad because
Nguyen v. Ins (2001)
- Facts
o USC 1409
* Citizenship process by persons born by one citizen parent and one noncitizen when parents are unmarried and child is born outside of the united states.
* Statute imposes different requirements for child’s acquisition of citizenship depending on if mother or father is the US citizen
o Based on governmental objectives
* Interest in assuring the biological parent-child relationship exists is easier for the mother
- Issue
o Violation of equal protection clause?
- Holding
o Yes.
- Rule
o Reject sex based classification without government interest, narrowly tailored.
- Application
o Congress is within its authority to refuse, absent proof, relationship between child and parent for purposes of citizenship.
* Congress could have done this by less restrictive means. It seems grounded in gender bias.
* So that men could deny their illegitimate children. It’s silliness.
e) Fundamental “Rights”
Skinner v. State of Oklahoma (1942)
- Facts
o Oklahoma law
* Sterilization of criminals
- Issue
o Violation of equal protection clause?
- Holding
o Yes
- Rule
o Equal protection clause.
- Application
o Many unequal applications. Tends to punish poor people more than rich ones.
o It’s generally deferential to criminal laws, unless it impedes on something fundamental
* Like procreation or marriage.
Zablocki v. Redhail (1978)
- Facts
o Wisconsin statute
* Any failure to pay child support may not marry without court permission.
- Issue
o Violation of equal protection?
- Holding
o Yes.
- Application
o Marriage is a fundamental right
o Not all marriage restrictions subject
* Only if direct and substantial restrictions are strict scrutiny for marriage
* Court says you can do other things that don’t do this.
o Is an equal protection violation.
San Antonio Independent School District v. Rodriguez (1973)
- Facts
o Texas
* Mostly rural state with even distribution of the state
* Differences become increasingly evident as State become more industrialized and as rural-to-urban population shifts became more pronounced
* Played a role in the taxes available for school districts
o Appellees
* From school district, low budget compared to rich folks.
- Issue
o Violation of equal protection?
- Holding
o No.
- Rule
o Certain suspect classes, wealth classification
* Must discriminate against them, pass strict scrutiny test. Or intermediate, depending on the class.
- Application
o Texas discriminates on the basis of wealth?
* No.
* Appellees don’t demonstrate that it operates to disadvantage any class in particular. Poor families can move, they can raise taxes. It’s geographical and part of normal local governing.
* Lack of personal resources is not an absolute deprivation of desired benefit. They both have schools and they meet a certain minimum for funding, despite differences in funding amount.
- Discussion
o Class action suit, violation of equal protection, on a class distinction
* School funding issue
o Court rejects wealth as a suspect class
* All schools get some funding, it’s not a deprivation of education
* Is at discretion of local jurisdictions. However, local control can and does result in inequity
* Still, isn’t a violation of intermediate scrutiny, the test in this case.
o Effect?
* Very little.
Pyler v. Doe (1982)
- Facts
o Texas law
* Denies undocumented school age children free public education.
* State argues that undocumented aliens are not persons as defined by the constitution., are not within the jurisdiction of Texas, and therefore have no right to equal protection
- Issue
o Violation of equal protection amendment?
- Holding
o Yes. Violation of equal protection.
- Rule/Application
o Legislature has latitude to establish classification
* Must only serve some legitimate public purpose.
- Discussion
o Violation of equal protection clause to refuse illegals education?
* Does it even apply to undocumented immigrants?
* No. It applies to immigrants.
* Notion that education is a portable benefit doesn’t matter.
* Anyone could be more or less likely to move out of state. Nobody has to stay here
o Court struck the provision down
* Doesn’t even pass rational basis
Bush v. Gore (2000)
- Facts
o Bush v. Gore election
* Ballots in Miami-Dade County, dangling chads.
* Bush tried to stop the recount.
- Issue
o Violation of equal protection to do the recount?
- Holding
o Yes.
- Rule
o Equal protection applies as well to the manner of election votes
* Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another
- Application
o Controversy seems to resolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to count them.
* The counting of votes is different than the original method proscribed by the legislature, counting some folks’ votes different than others.
- Discussion
o Article 2 argument from concurrence
* States can choose how electors are appointed. Statutory law says the people would elect electors, and so it should be enforced.
o Dissent
* State court has a right to interpret state law, Federal court has no business here.
* For voting issues, should have heightened scrutiny. Rational Basis Review
* Must serve legit function, but discretion given to the state.
d) “Hybrid” Review
City of Cleburne v. Cleburne Living Center (1985)
- Facts
o Texas city ordinance
* Requires permit to operate a home for the mentally retarded.
* Mental retardation is a quasi-suspect classification
- Issue
o Zoning ordinance violation of equal protection?
- Holding
o No
- Rule
o Persons similarly situated should be treated alike.
* Wide latitude for legislation, so long as it isn’t totally overbroad and serves some kind of legitimate government purpose.
- Application
o Mental retardation is not a quasi-suspect classification calling for more than exacting standard of judicial review normally afforded economic and social legislation
* They range in disability to those who are not immediately evident to those who must be constantly cared for. They are different in providing for them, and the State’s interest is valid in caring for them.
- Discussion
o Only rational basis review because no history of discrimination
* Are diverse, have caretakers with political power
Romer v. Evans (1996)
- Facts
o Colorado constitutional amendment
* Prohibits all regulations that would protect homosexual persons from discrimination.
- Issue
o Violation of equal protection?
- Holding
o Yes.
- Rule
o Great deference to legislatures to do stuff against classes unprotected, but it must
* Not burden a fundamental right nor target a suspect class
- Application
o Homosexuals are put in a solitary class with respect to transactions and relations in both the private and governmental spheres.
* It is fair to infer that the broad language deprives gays and lesbians of protections of laws and policies that prohibit arbitrary discrimination in governmental and private settings.
* Two reasons why it doesn’t pass equal protection
* Is way too broad
* Serves no legitimate governmental function aside from discriminating against a class needlessly
- Discussion
o Does not satisfy rational basis, but refuses to claim them as a quasi-suspect class or suspect class
* No rational basis for the law.
o Case is important because
* It rejects the idea that animus or hostility toward a class is not a rational basis
Windsor v. United States (2012)
- Facts
o Surviving spouse of a same sex couple
* Married in Canada, lived in New York
* Was denied spousal deduction because of DOMA
o DOMA
* Defines marriage and spouse in a federal law in a way that bars the IRS from recognizing her as a spouse or that the couple was married.
- Issue
o Violation of Equal protection clause?
- Holding
o Yes.
- Rule
o Test to determine if a class is suspect, and if heightened scrutiny applies
* a) If the class has historically been subjected to discrimination
* b) If the class has a defining characteristic that frequently bears a relation to ability to perform or contribute to society
* c) If the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group
* d) If the class is a minority or politically powerless.
o To withstand, must be substantially related to an important governmental interest. Also, substantially related means that the explanation must be “exceedingly persuasive.”
- Application
o Homosexuality is a sufficiently discernible characteristic to define a discrete minority class.
- Discussion
o Homosexuality as a suspect class.
* Level of scrutiny? Court says rational basis when determining federal benefits. But if there is a historical discrimination…
* Here, it’s intermediate scrutiny
* 4 Factors to see if it should raise the class to suspect or quasi-suspect.
* All the factors cut in favor of treating homosexuals as a quasi-suspect class.
o Gay marriage stuff
* I should read these things. Probably won’t be on the exam, but it’s important debate. Or maybe so
Recap
- State action a prerequisite
o State must be involved for 14th amendment equal protection claim
o Must be state of mind. Impact may help establish violation, but it’s a claim of the state of mind of the legislature
- Three tiers of scrutiny
o Strict
* Usually fatal in fact, government almost always looses, but not always. Like with affirmative action.
* Suspect class (race), sometimes alienage and nationality (exceptions for immigration, unless a proxy for race), or fundamental interest. Gender? Not quite, but sometimes it looks close.
o Intermediate
* Gender
o Rational Basis
* Generally a pass, but there must be an actual rational basis.
* Homosexuality, although, we shall see in this upcoming supreme court
* Age, disability, alienage (depending on situation)
Section 5: Congressional Power to Enforce § 1
Katzenbach v. Morgan (1966)
- Facts
o Voting Rights Act 1965
* Provides that no person shall be denied the right to vote because of his inability to read or write English.
- Issue
o Exceeded powers granted in violation the constitution?
- Holding
o No. Literacy requirement cannot be enforced to the extent that it is inconsistent with § 4 of Act, and it’s within the federal government’s powers.
- Rule
o States establish qualifications for voting for state officers. States have no power to grant or withhold the franchise on conditions that are forbidden by 14th amendment, or any other provision of the Constitution.
* Exercises of state power are no more immune to the limitations of the 14th amendment than any other state action.
- Application
o §4 may be regarded as an enactment to enforce the equal protection clause
* Denying the right to vote because of inability is within the powers of the government, and may be enforced upon the states. It’s plainly adapted to furthering these aims of the Equal Protection Clause.
- Discussion
o NY has literacy tests. Excludes Puerto Ricans from voting.
City of Boerne v. Flores (1997)
- Facts
o Religious Freedom Restoration Act of 1993
* Local zoning authorities was challenged under this act that would have denied a church a building permit.
- Issue
o Exceeding Congressional Power?
- Holding
o Yes.
- Rule
o Ability to enforce generally applicable prohibitions of socially harmful conduct
* Can’t depend on measuring effects of governmental action on a religious objector’s spiritual development
* To make an individual’s obligation to obey the law dependent upon the law’s coincidence with his religious beliefs, except where a State’s interest is compelling contradicts both constitutional tradition and common sense.
- Application
o RFRA prohibits burden on religion unless compelling government interest
* Lacks examples of instances of generally applicable laws passed because of religious bigotry which place incidental burdens on religions.
* RFRA can’t be considered remedial because there are no injustices that it’s correcting.
* It’s an overly broad exercise of congressional power.
- Discussion
o Step 1: identify constitutional right at issue
o Step 2: evidence/pattern of state violations of that right
o Step 3: Remedy Congruent and proportional
o Here, it’s about requiring section five to override state immunity
University of Alabama v. Garrett (2001)
- Facts
o ADA
* Prohibits employers from discriminating against a qualified individual because of their disability.
* Employers must make reasonable accommodations unless employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer’s business.
- Issue
o Do employees of Alabama able to recover money damages by reasons of State’s failure to comply with ADA?
- Holding
o No. Employees not able to recover under ADA. It’s an overreach of authority.
- Rule
o Congruence of proportionality between the injury to be prevented or remedied and the means adopted to that end.
* Mental retardation is a quasi-suspect classification
* States are not required to make special accommodations for the disabled, so long as their actions toward such individuals are rational.
- Application
o ADA record fails to show that Congress did identify a pattern of irrational state discrimination in employment against the disabled.
* In order to authorize private individuals to recover money damages against the States, there must be a pattern of discrimination by the States which violates 14th amendment, and the remedy imposed must be congruent and proportional to the targeted violation
* Requirements are not met here.
Nevada Dep’t of Human Resources v. Hibbs (2003)
- Facts
o FMLA Act
* Entitled eligible employees to take up to 12 weeks of unpaid leave annually for several reasons.
* Creates a private right of action to seek both equitable relief and money damages against any employer
- Issue
o Congressional overreach?
- Holding
o No. Employees of Nevada may recover money damages for failure to comply with family-care provision of the act.
- Rule
o Distinguish between men/women subject to heightened scrutiny
* Must serve important governmental functions and means must be substantially related to the achievement of those goals.
- Application
o States’ record of unconstitutional participation in and fostering of gender-based discrimination in administration of leave benefits is sufficient to justify enactment of the legislation.
Coleman v. Court of Appeals of Maryland (2012)
- Facts
o FMLA Act
* Entitled employees to take 12 weeks leave for certain things.
* Here, addresses provision D
* Employee’s own serious health condition when the condition interferes with the employee’s ability to perform at work
o And cause of action
- Issue
o Congressional overreach?
- Holding
o Yes.
- Rule
o States are immune from suits for damages unless Congress says otherwise, or States allow it.
- Application
o Lacks a pattern of state constitutional violations that would need this kind of remedy available.
* The provision is not congruent and proportional to any identified constitutional violations
* It follows that abrogating the States’ immunity from suits for damages for failure to give self-care leave is not a congruent and proportional remedy if the existing state leave policies a=would have suffered.
The First Amendment And Freedom of Religion
The Establishment Clause
Everson v. Board of Education (1947)
- Facts
o New Jersey Statute
* Local school districts to make rules and contracts for transportation of children to and from schools
* Authorized reimbursement for money expended by parents for bus transportation of their children, some of which was to Catholic schools.
- Issue
o Use of state power to support church schools contrary to the prohibition of the First Amendment?
- Holding
o No. It’
- Rule
o Neither a state nor Fed can set up a church, pass laws which aid one religion, all religion, or prefer one over another, force or influence a person to profess a belief or disbelief in any religion, punish for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance, tax in any amount can be levied to support religious activities or institutions.
* Wall of separation between church and state
- Application
o New Jersey can’t contribute tax-raised funds to support an institution which teaches the tenants and faith of any church.
* However, NJ can’t hamper citizens from free exercise of their own religion
* It’s universal, and regards transportation. Not for religion. Has nothing to do with the church, and applies to all universally.
The Lemon Test
- Lemon v. Kurtzman
o To be valid against attack under the establishment clause
* Statute must have a secular legislative purpose
* Principal or primary effect must be one that neither advances nor inhibits religion
* Statute must not foster an excessive government entanglement with religion
Zorach v. Clauson (1952)
- Facts
o NY City program
* Permits public schools to release students during the school day so they may leave the school buildings and go to religious centers for religious instructions or devotional exercises
- Issue
o Violation of 1st amendment establishment clause?
- Holding
o No
- Rule
o Wall between church and state.
- Application
o Program involves neither religious instruction in public school classrooms nor the expenditure of public funds. All costs are paid by religious institutions.
Santa Fe Independent School District v. Doe (2000)
- Facts
o School student who occupied the school’s elective office of student council chaplain delivered a prayer over the public address system before each varsity football game for the entire season
* District court ordered the policy to be nonsectarian, nonproselytizing prayer
* Court of appeals held even that was invalid.
- Issue
o Violation of equal protection clause?
- Holding
o Yes.
- Rule
o Government may accommodate the free exercise of religion
* Government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a state religion or religious faith, or tends to do so’
- Application
o Invocations are authorized by a government policy and take place on government property at government-sponsored school-related events
* School officials simply do not open the ceremony to indiscriminate use
* Rather, school allows only one student, the same student for the entire season, to give the invocation. Invocation is subject to particular regulations that confine the content and topic of the student’s message
Edwards v. Aguillard (1987)
- Facts
o Act forbids the teaching of the theory of evolution in public schools unless accompanied by instruction in “creation science”
- Issue
o Does Creationism act violate establishment clause of first amendment?
- Holding
o Yes.
- Rule
o Establishment Clause forbids the enactment of any law “respecting an establishment of religion”
* Three pronged lemon test
* Legislature must have secular purpose in the law
* Principal effect must not advance or inhibit religion
* Statute must not result in an excessive entanglement with religion
- Application
o Students in such institutions are impressionable and their attendance is involuntary
* State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure.
* Is clearly in violation of lemon test.
McCreary County, Kentucky v. American Civil Liberties Union of Kentucky (2005)
- Facts
o Ten Commandments posted on the walls of the courthouses
* Legislative body adopted and allowed it.
- Issue
o Violation of Establishment clause?
- Holding
o Yes
- Rule
o May not support one religion over another.
- Application
o The court is placing it in a visible place, obvious religious significance.
* Supports one Christian religion over others.
Van Orden v. Perry (2005)
- Facts
o Surrounding Texas State Capitol are 22 acres with 21 historical markers.
* One is a monolith with the Ten Commandments on it.
- Issue
o Establishment clause allow display of monument inscribed with 10 commandments on Texas State Capitol Grounds?
- Holding
o Yes. Constitutional
- Rule
o Responsibility to maintain a division between church and state, nor exercise hostility to religion by disabling the government from in some ways recognizing our religious heritage.
- Application
o Lemon test doesn’t apply here
* History of official acknowledgement by all three branches the role of religion in American life.
* This is a historical marker, not religious. Therefore, it’s cool.
o Court also distinguishes between active and passive displays, and this is passive. It’s a little thing on the grounds.
Agostini v. Felton (1997)
- Facts
o Sending public school teachers into religious schools to provide remedial education to disadvantaged children pursuant to a congressionally mandated program
- Issue
o Violation of establishment clause?
- Holding
o Yes.
- Rule
o Lemon test
- Application
o Excessive entanglement here.
Zelman v. Simmons-Harris (2002)
- Facts
o Ohio pilot program
* Provides financial assistance to families that is or have been under federal court order requiring supervision and operational management of the district by the sate superintendent.
* Two kinds of assistance
o Provides tuition aid to attend a participating public or private school of their parent’s choosing
o Provides tutorial aid for students who choose to remain enrolled in public school
* Assistance may go to religious schools.
- Issue
o Violate establishment clause?
- Holding
o No.
- Rule
o Establishment clause prevents a state from enacting laws that have the effect or purpose of advancing or inhibiting religion.
- Application
o Program was enacted for secular purpose.
* Program respects private choice and is neutral toward religion.
The Free Exercise Clause
Sherbert v. Verner (1963)
- Facts
o Member of Church
* Discharged by employer because she would not work Saturdays, the Sabbath day of her faith
* Was denied unemployment benefits because she could not find a job.
* She could not find a job because she could not work Saturdays.
o Statute for unemployment benefits
* Allowed for people to refuse to work Sundays, but not Saturdays.
- Issue
o Violation of establishment clause?
- Holding
o Yes.
- Rule
o May not prefer one religion over another.
- Application
o No such justification to distinguish between Saturday and Sunday holiday observances.
Wisconsin v. Yoder (1972)
- Facts
o Respondents
* Amish residents of Wisconsin
o Wisconsin require children attend school until age 16
* Amish, due to religion, refuse to send children to school after 8th grade.
- Issue
o Violation of establishment clause?
- Holding
o Yes
- Rule
o Only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion
- Application
o Enforcement of the State’s requirement of compulsory formal education after 8th grade would endanger if not destroy the free exercise of respondents’ religious beliefs
* An additional one or two years of formal high school would do little to serve state interests
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
- Facts
o Respondents fired for smoking peyote
* Respondents claim it was religious.
o Peyote use violates Oregon law
* Denied unemployment benefits because they were fired for doing something illegal.
- Issue
o Free exercise clause permits Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use?
- Holding
o Yes. It’s permitted. Law constitutional.
- Rule
o Free exercise of religion means the right to believe and profess whatever religious doctrine one desires
* Excludes all governmental regulation of religious beliefs
* Government may not punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or lend its power to one or the other side in controversies over religious authority or dogma.
o Religious beliefs do not excuse from compliance with otherwise valid law prohibiting conduct that the State is free to regulate.
- Application
o State is free to regulate peyote use. Religion effect is incidental, is not the goal of the legislation.
* Can’t just say “it’s my religion” and get away with anything.
Play in the Joints?
Locke v. Davey (2004)
- Facts
o Washington Scholarship Program
* Students may not use the scholarship to pursue a degree in devotional theology
- Issue
o Violation of Free Exercise Clause?
- Holding
o No
- Rule
o Establishment Clause and Free Exercise Clause
* In tension. But there is room for play within the joints between them.
* There are some state actions permitted by Establishment and Free Exercise clause that have to do with religion.
- Application
o The program does not require students to choose between their religious beliefs and receiving a government benefit. The State has merely chosen to not fund a distinct category of instruction.
Condensed Con Law Outline #2
Powers of the Branches of GovernmentJudicial Power
Judicial Review
- CAN THE COURT REVIEW X LAW?
o Court has the power to invalidate law by declaring them unconstitutional [Marbury v. Madison (1803)]
* “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties…” [US Constitution, Article III: Section 2, Sub 1]
o Court has the power to review State law for constitutionality [Martin v. Hunter’s Lessee (1816)]
* “The judicial Power shall extend to all Cases…” [US Constitution, Article III: Section 2, Sub 1]
* “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” [US Constitution, Article III: Section 2, Sub 2]
- HOW DOES THE COURT REVIEW LAWS?
o Things are largely open to interpretation. Textualists, Purposivists, utility of foreign or natural law
Limits on Judicial Power
- Congress has power over the lower federal courts, to establish, expand or limit
o “To constitute Tribunals inferior to the supreme Court” [US Constitution, Article I: Section 8, Sub 9]
- Congress can limit appellate jurisdiction:
o “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” [US Constitution, Article III: Section 2, Sub 2]
o Congress can limit and regulate the court’s jurisdiction, as long as the limits are narrowly defined and not universal, such as “no Habeas Corpus for anyone!” [Ex Parte McCardle (1868)]
- Congress can change underlying laws for judicial decisions
o Amending the constitution, or just the underlying law that provides the basis for the decision, such as in [Pennsylvania v. Wheeling & Belmont Bridge Co. (1852)], [Miller v. French (2000)]
- Congress cannot limit jurisdiction by: (Separation of powers, Articles I and III are relevant)
o Limiting jurisdiction to all non-citizens, and constitutional rights apply no matter the location so long as the US has a presence [Boumediene v. Bush (2008)]
o Changing law to undo court decisions, such as reviving cases past the statute of limitations (absent constitutional amendment) [Plaut v. Spendthrift Farm, Inc. (1995)]
o Conditioning decisions on approval by another branch of government [Hayburn’s Case (1792)]
Limits by Case or Controversy
- Court cannot offer advisory opinions. Must exist some case or controversy [Article III]
o Claimant must have standing [Test from Friends of Earth v. Laidlaw (2000)]
* Must
* 1) show injury in fact that is
o a) concrete and particularized and
o b) actual or imminent
* Environmental destruction is good enough if you’re a citizen who may give pause based on environ. destruction [Massachusetts v. EPA (2007)]
* 2) causation
* 3) redress is possible
o Actual harm must exist.
o Must not be moot, or irrelevant due to end of parties’ dispute
o Court cannot answer discretionary questions vested in another branch of government
* Political questions such as redistricting, so long as people can vote [Baker v. Carr (1962)]
* No discernable test to see what is constitutional or not for redistricting, so the court stays out of it [Vieth v. Jubelirer (2004)]
Executive Powers
- President’s power must stem from an act of Congress or the Constitution [Youngstown v. Sawyer (1952)]
o General scale of difficulty in allowing executive power overstepping on Congress
* 1. Congress agrees
* 2. Congress Neutral
* 3. Congress disagrees
o POTUS can:
* Act under authority not given if it’s delegated and generally under the prevue of the executive, such as with international issues [United States v. Curtiss-Wright (1936)]
* Create tribunals to solve international disputes, so long as they do not deny due process [Dames & Moore v. Regan (1981)]
o But POTUS can’t
* Act contrary to Congress even if given the power [Clinton v. City of NY (1998)]
* Unilaterally act to create law binding on the US without Congressional approval [Medellin v. Texas (2008)]
- POTUS has Executive privilege and immunity to shield from inquiries and enable him to engage in pres. acts
o Is not universal and cannot be sustained under all circumstance [United States v. Nixon (1974)]
* President is immune from civil liability [Nixon v. Fizgerald (1982)]
* But not civil actions on the POTUS’s private actions [Clinton v. Jones (1997)]
Delegation of legislative authority to the Executive
- Previously
o Not allowed for interstate commerce, or generally [Panama Refining Co. v. Ryan (1935)], [ALA Schechter Poultry v. United States (1935)]
* Have allowed it since, upholding delegation of court martials under executive [Loving v. United States (2001)], or allowing EPA to set air quality standards [Whitman v. American Trucking (2001)]
- Currently
o Congress may not:
* Unilaterally make legislative actions/circumvent bicameral & POTUS [Ins v. Chadha (1983)]
* Vest budget power in comptroller who Con has no power over [Bowsher v. Synar (1986)]
Appointment of officials
- Congress must affirm POTUS’s nominations of officers of the US [Appointments Clause of Article II]
o Distinguish between principal and inferior officers [Buckly v. Valeo (1976)]
* Superior officers are Ambassadors, heads of departments, etc.
* Generally may be determined by the officer’s duties, accountability, tenure, and other factors [Morrison v. Olson (1988)]
* Inferior officers may be appointed 1) through president alone, 2) by the Courts, 3) by the heads of departments.
- Power to remove officials
o Must be accountable to the respective branch, most commonly executive, and multi-layer accountability that is too distant is insufficient and is a violation of powers [Free Enterprise Fund v. Pcaob (2010)]
War Powers
- Congress may call forth militia to execute laws of the Union, suppress insurrections, and repel invasions [Article I: Section 8, Clause 15 and Article IV: Section 4]
o POTUS can’t declare or initiate war, but can respond to it in his authority [The Prize Cases (1862)]
o POTUS has power to hold prisoners of war and hold military tribunals [Ex Parte Quirin (1942)]
Congressional Powers
Necessary and Proper
- The gov can only exercise powers that are enumerated, but may do things that are necessary and proper in exercising those powers that extends beyond what is enumerated [McCulloch v. Maryland (1819)]
o Powers extended and interpreted widely by the court [United States v. Comstock (2010)]
Commerce Power
- Congress has power over interstate commerce, defined as commercial intercourse between states, including navigation [Gibbons v. Ogden (1824)]
o Commerce power includes over local produced and locally consumed goods due to their ancillary effect on demand for interstate goods [Wickard v. Filburn (1942)] [Gonzalez v. Raich (2005)]
o May apply to actions that may suppress interstate travel [Heart of Atlanta v. United States (1964)]
- Modern test for if there is a substantial impact on interstate commerce:
o 1. Did congress have a rational basis for x effecting interstate commerce?
o 2. If x did, did Congress choose reasonable and appropriate means for regulating interstate commerce?
- Limitations
o Doesn’t reach issues that are traditional state’s issues and have no clear connection to interstate commerce [United States v. Lopez (1995)]
* Categories of regulations permissible [US v. Lopez (1995)]
* 1. Use of channels of interstate commerce
* 2. Instrumentalities of interstate commerce
* 3. Activities with a substantial relation to interstate commerce
o a. Nature of activity is commercial, economic
o b. Other factors to balance
* 1. Jurisdictional element
* 2. Congressional findings
* 3. Causal link
* 4. Area of traditional state concern
* Example; VAWA, only indirect effects on interstate commerce, and is traditionally an area of state concern is NOT sufficient for congress to regulate it [United States v. Morrison (2000)]
o Congress cannot create commerce, only regulate existing commerce [NFIB v. Sebelius (2012)]
Dormant/Negative Commerce Clause
- Commerce clause not only allows Congress to regulate interstate commerce, it gives them the exclusive power to regulate commerce
o States do not have the power to regulate interstate commerce. AKA Field preemption. [Wilson v. Black Bird (1829)]
* However, States cannot completely isolate themselves. Test [Philadelphia v. New Jersey (1978)]:
* If discriminatory on it’s face toward interstate trade, invalid
o Exception for extreme health threats, for quarantine
* If neutral but incidentally burdens interstate commerce, Pike test:
o 1. State interest/purpose
o 2. Compare interest to burden
* Countervailing public health or safety interest? [Kassel v. Consolidated Freightways (1981)]
* Especially strict if it is international commerce [Timber V. Wunnicke (1984)]
o Even if the state is regulating itself, it cannot discriminate against interstate commerce [(Article IV, §2; State Privileges and Immunities clause), (United Building and Construction v. Camden)]
The Taxing Power
- Congress has power to lay and collect taxes [Article I: Section 8, Clause 1]
o Taxes need not be called taxes by legislation imposing them [NFIB v. Sebelius (2012)]
The Spending Power
- Congress can withhold funds to entice state compliance with federal statutes [South Dakota v. Dole (1987)]
o But cannot withhold such funds that make it conditional upon existing funds [NFIB v. Sebelius (2012)]
Federalism
Congressional Regulation of the States
Powers not delegated nor prohibited are reserved for the States or the people [10th Amendment]
- The Federal government can
o Impose restrictions on state governments, so long as it is incidental and done under their constitutionally granted power [Gardia v. San Antonio Metro Transit Authority (1985)]
- The Federal government can’t
o Directly compel states to act or enforce Federal programs [New York v. United States (1992)]
* Even if in a minor capacity, such as background checks done by police officers of a given state for firearms purchases [Printz v. United States (1997)]
Constitutional Immunity of the States [11th Amendment]
- Sovereign immunity of the states
o States cannot be sued directly by tribes [Seminole Tribe of Florida v. Florida (1996)]
* But can sue officers or lesser entities of a state [Alden v. Maine (1999)]
o Also applies to administrative courts such as maritime, so long as it sufficiently resembles a court [Federal Maritime Commission v. South Carolina State Ports Authority (2002)]
Federal Preemption of State Laws
- Congress can impede on areas of traditional state control, such as contracts, if there is substantial reason to do so, such as for public health [Home Building & Loan v. Blaisdell (1934)]
o States cannot make laws regarding areas in which Congress is presumed to have field preemption
* Such as with Senate term limits [US Term Limits v. Thorton (1995)]
* Or intended comprehensive regulation that’s impeded by State law [Geier v Honda (2000)]
o States also cannot preempt Presidential actions [American Ins. Association v. Garamendi (2003)]
- Preemption is criticized by textualists as being contrary to federalist principals and a violation of state sovereignty
Congress’s Power to Enforce Laws On the States
- Congress may require the states to act or do things under Sec 1 of 14th amendment
o Equal protection applies to the states as well
- For the Fed to be able to force states to do things, must
o 1. Identify a constitutional right at issue
o 2. Show evidence of a pattern of state violations of that right
o 3. The legislative remedy must be congruent and proportional
The Fourteenth Amendment
14th Amendment Applies Only To State Action
- 14th amendment requires the state to not discriminate. [The Civil Rights Cases (1883)]
o Does not give the state the power to prevent individual discrimination on the basis of race [The Civil Rights Cases (1883), Shelly v. Kraemer (1948)]
* Courts = state action. Disregard race discrimination contracts [Shelly v. Kraemer (1948)]
o Test for 14th amendment applicability [Edmonson v. Leesville Concrete Co. (1991)]
* 1. Source of activity based in state law?
* 2. Is this a traditional state junction?
* 3. Aggravated by government authority?
o Duty to prevent loss of liberty under 14th: Test [Deschaney v. Winnebago County (1989)]
* 1. Is there a special relationship?
* Such as state custody, in prison or ward of the state
* 2. Was the danger created by the state
Federal Privileges or Immunities
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....
- Right to pursue occupation under 14th
o Law must be without reason and complete bar to violate 14th [Slaughter-House Cases (1873)]
- Right to travel
o Law must directly impair entry or exit to the state to violate 14th [Saenz v. Roe (1999)]
Procedural Due Process
- Due process demands that a citizen held in the US as an enemy combatant be given meaningful opportunity to contest the factual basis for the detention before a neutral decision maker. [Hamdi v. Rumsfeld (2004)]
o Must have some kind of procedure, defined by legislation, for the deprivation of life, liberty or property [Cleveland Board of Education v. Loudermill (1985)]
- Three factors in considering sufficiency of procedural due process [Mathews v. Eldridge (1976)]
o 1. The private interest that will be affected by the official action
o 2. The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional substitute procedural safeguards
o 3. The Government’s interest, including the function involved and the fiscal and administrative burdens that the additional substitute procedural requirement would entail.
Substantive Due Process
- Economic Rights
o Entitlement to due process, but limits for the protection of health, safety, morals and welfare of citizens [West Coast Hotel v. Parrish (1937)]
* Must have some valid reason [Lochner v. NY (1905)]
o Excessive punitive damages in civil suits are a violation of due process [State Farm v. Campbell (2003)]
- “Incorporation” Doctrine
o Due process incorporates other rights, so that must have due process before depriving them of constitutionally protected rights, like right to bear arms [McDonald v. Chicago (2010)]
- Privacy Rights
o No explicit privacy right, but can be inferred, and is recognized [Griswold v. Conn. (1965), Roe v. Wade]
* Test balancing interest of woman with state interest in life [Planned Parenthood v. Casey (1992)]
* 1. Pre-viability – test is undue burden on seeking abortion
* 2. Post-viability – any ban short of disregarding women’s health
o Can’t limit dwelling or family arbitrarily [Moore v. Cleveland (1977), Troxel v. Granville (2000)]
* Or sodomy laws [Lawrence v. Texas (2003)]
o Right to refuse medical treatment, unless some substantial overriding state interest [Cruzan (1990)]
* Like prohibiting assisting suicide [Washington v. Glucksberg (1997)]
Equal Protection
- Three Tiers of Scrutiny for Equal Protection Analysis
o Strict Scrutiny
* Government must have compelling interest in the subject matter and it must narrowly tailor classification to fulfill that interest
* Race classifications
* Separate is inherently unequal [Brown v. Board of Education (1954)]
* Even if not discriminatory on it’s face, but in effect [Yick Wo v. Hopkins (1886)]
* Some allowances for emergencies or war times, but controversial and extremely limited
* Can’t outlaw affirmative action, or deny the right to seek preferential treatment to minority groups.
* Affirmative action
* Quota systems are not allowed
* But State has an interest in diversity, and it may be a consideration so long as it is not the only consideration. Still must be narrowly tailored.
* Fundamental rights
* Strict scrutiny if it punishes a certain economic class, or impedes on right to procreate or marriage
o Intermediate/heightened Scrutiny
* An important government interest closely related to the government’s classification
* Gender classifications
* Can’t make overly broad generalizations based on sex unrelated to differences between men and women which demean the ability or social status of the affected class
o But can uphold if realistically reflects that the sexes are not similarly situated in certain circumstances.
* Other classifications may face heightened scrutiny under this test
* a) If the class has historically been subject to discrimination
* b) If class has defining characteristic bearing relation to ability to contribute to society
* c) Class is a discrete group with obvious characteristics
* d) If the class is a minority or is politically powerless
o Rational Basis
* Must just serve some legitimate government interest and be rationally related to that interest
First Amendment Freedom of Religion
The Establishment Clause/Free Exercise Clause
- Wall of separation
o Neither a state nor Fed can set up a church, pass laws which aid one religion, all religions, or prefer one over another, force of influence a person to profess a belief or disbelief in any religion, punish for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance, tax in any amount can be levied to support religious activities or institutions. [Everson v. BOE (1947)]
o Government may accommodate, but can’t support or participate.
* Like with bussing or transportation, so long as it is neutral [Zorach v. Clauson (1952)]
* But not an act requiring creationism teaching in public school [Edwards v. Aguillard (1987)]
o 10 Commandments?
* Not if it’s clearly supporting them as religious doctrine [McCreary County v. ACLU (2005)]
* But yes if it’s historical acknowledgement [Van Orden v. Perry (2005)]
- The Lemon Test
o To be valid (controversial rule)
* 1. Statute must have secular purpose
* 2. Principal or primary effect must not advance or inhibit religion
* 3. No excessive entanglements with state and religion
- Must allow for free exercise
o Only interests of the highest order and not otherwise served can overbalance legitimate claims to the free exercise of religion [Wisconsin v. Yoder (1972)]
* But it does not permit religion to be used as a defense against breaking otherwise valid law [Employment Division v. Smith (1990)]
- Some room between these clauses
o Like: to allow/disallow government scholarships to be used for religious instruction is between the two clauses and is under legislative discretion [Locke v. Davey (2004)]
