accepted - bruski for shagen con law i

8/8/2019 ACCEPTED - Bruski for Shagen Con Law I

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Constitutional Law I

But Congress lacked much of the authority that they needed to regulate commerce, etc

movement of the Federalists to create Federalism

Federalist Papers to try to convince the states to create a federation; amend articles of confederation

Those who opposed the new Constitution were called Anti-Federalists-their concern was that the G would be overreaching

Constitution

Our federal G is one of enumerated, limited powersFederal G does not have a general police power

-so when Congress passes a law/act > it must be tied to a source in the C*whenever someone is acting you have to identify who is acting and where the authority comes from

States have retained inherent police powers> the ability to regulate for the general welfare, health, safety, and morals

Congress has limited police powers in some circumstances

over the DC

over Federal Power

If the C does not grant the Federal G the power, where does that power lie?-in the states-in the people

Article I

Section 8 > Congress has the power to:-tax-spend for the general welfare-to regulate commerce (Commerce Clause)

-with foreign nations-among the states-with Indian nations

-regulate immigration

-coin money-set up article I courts-declare war-regulate federal property-to make all laws which shall be necessary and proper to carrying out the foregoing powers

*the necessary and proper clause is not an independent source of power-it simply authorizes congress to use any means necessary to carry out the above enumerated powers-Congress has the power to legislate as is necessary for other branches to carry out their enumerated powers

Article II

the executive power shall be vested in the President

and he has several powers-appoint judges, etc

*the most important presidential powers are derived from role as chief ex and commander in chief

Article IIIThe judicial power of the US shall be vested in one Supreme Court (only one created by the C)-then Congress through legislation creates the lower cts (these are called article III courts)-SC reviews cases as an appeal as of right or by cert.

section 2 > defines the JUR of the Federal Cts-gotta be FQ or DIV-has to be the FQ that is actually in dispute

clause 2 > in all cases involving federal officers, the SC shall have original and appellate JURoriginal > the court where the pleadings will be filed


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appellate > the power to review

SC has original and exclusive JUR for suits between 2 or more states !*while congress cannot expand the original JUR of the SC, it can grant lower courts concurrent JUR

-thus the SC has original but not necessarily exclusive (could be concurrent) JUR for other issues

Constitutional Interpretation-the nature of the C requires interpretation, it is not a comprehensive document-originalism > ct should be confined to enforcing norms only if it is clearly in the words or clearly in the intent of the framers

(restricted view)-non-originalists > look beyond the 4 corners, the C should evolve thru not just amendment but thru judicial interpretation

Marbury v Madison

(Jefferson had just been elected and before he took office, Adams was trying to stack the SC with Federalists)

Writ of mandamus > order by the court to compel someone to perform a duty(equitable remedy)

-Marbury sues Madison to compel him to deliver the commission-filed an original action in the SC under the authority of the Judiciary Act of 1789

-Article III > give SC original JUR for all cases involving ambassadors, etc-Judiciary Act > SC shall have original JUR and power to issue writs of mandamus to any courts appointed or

persons holding office under the authority of the US

Issues(1) Does Marbury have a right to the commission

Yes- he has a legal right(2) Do the laws afford him a remedy

Yes- there is a legal duty imposed by law*but there are some things that are sort of beyond the reach of the judiciary(but not this)

-such as political questions, which are not duties established by law

If there is a political question the court will not render a decision on the merits

(3) Is Marbury entitled to a writ of mandamus

-can a court issue a writ of mandamus ordering the executive to do somethingYes judicial review over the executive branch is established here-does the ct have original JUR to issue a writ of mandamus or is the Judiciary Act unconstitutional

(4) Is an act which is repugnant to the C the law of the land or can the court declare it unconstitutional*the court can declare a statute contrary to the C as unconstitutional

POINT > If there is a conflict between the C and the law, the court must determine which to follow and the C is binding and superior

It is emphatically the province and the duty of the judicial department to say what the law is. Those who apply the rule toparticular cases, must of necessity expound and interpret that rule. If 2 laws conflict with each other, the courts must decideon the operation of each.

Courts decide casesCases must be decided according to the lawThe C is the supreme lawCourts cant follow an act which is contrary to the C

Narrow Interpretation of Marbury > ct can refuse to uphold a statute that they find contrary to the lawBroad Interpretation of Marbury > the ct is supreme in interpreting the C; judicial supremacy exists


3/25

Cooper v Aaron

POINT > Brown v Board of Education is binding upon the states and those who oppose it are in opposition to the C under theSupremacy Clause-state actors do not have the ability to defy a SC decision-state actors are bound to uphold the C, so you cannot uphold the C if you are trying to defy it*SC decisions are binding under the Supremacy Clause!

Week 2

Marbury addressed judicial review of the other federal branchesCooper addressed judicial review of the statesMartin addressed judicial appellate review

Martin

-man left property to his nephew who was not a US citizen and there was a statute that said that Virginia could take land-Virginia Appellate Court refused to obey SC mandate that said that the section of the Judiciary Act that extended the appellate JUR ofthe SC to this court is unconstitutional and even if valid, THIS case was not properly before the SC, cuz not a FQ

-Martin claims land consistent with a federal treaty-Hunter claims land consistent with a state grant

-Article 3-section 25 of Judiciary Act of 1789

> we need a final authority on differing state interpretations of the C (less chance of state bias if the final authority rests with fed)> SC has the power to review both civil and criminal state court cases, as long as it is a FQ on appeal> Fill in key points from slide

CohensSC has power to review state criminal cases, just like civil cases-fill in key points from slide

Non-Justiciable Political Questions

-there are 2 types of political questions that the Fed Ct cannot hear

non-justiciable > they will be decided by the other branches, not the judiciary*there are some things that the SC should just not get involved in

(1) explicitly given to Congress/President(2) too hot to handle

(1) case in controversy questions (article 3) (textual)-first interpret the C and see what power the C confers upon who

(2) prudential questions > the ct as a matter of prudent matter of administrative policy-reflect judicial deference to the other branches of the G

> just becuz we wont hear political questions in general does not mean that we will not hear those questions that involve a

constitutional right even though it is inherently political in nature

> a court will not render a decision on the merits if it is a political question

*congress can waive the prudential questions but not the Article 3 questions-if the doctrine is derived from the case in controversy requirement then congress cannot waive it, but if derived from prudential, it canbe waived

malapportionment > representatives not apportioned properlypolitical gerrymandering > proper apportionment, but the lines are drawn in a way as to give a party an unfair advantage


4/25

Powell-Misconduct on the part of representative Powell > house excluded him; he says that it was unconstitutional for the house to do this> Article I section 5: each house shall be the judge of the elections, qualifications, etc of its own members

> they could expel him, but they could not exclude him(cuz that is a prohibition of his right to hold his office)

it was a textual question, so we first need to look at what the C actually says and who it gives the power to decide this too figure out what the intent of the framers was in this context

> But they decided that it was a justiciable question and would not create an embarrassing situation in which the judiciarywould be in conflict with the other branches of the judiciary

Nixon-federal judge was impeached for perjury; senate committee heard the evidence, then the whole senate voted to impeach him-Nixon argued that Senate Rule XI violates the C grant of authority for senate to try all impeachments cuz it prohibits the whole senatefrom taking part in the evidentiary hearing

> the senate has the exclusive power to determine procedures for impeachment cases (article I)> the ct said it was non-justiciable, so they did not render a decision on the merits> C says that the senate has sole authority on this; if the judiciary can review, how does the senate have sole authority> no judicial review of impeachments becuz:

(1) keep the subsequent criminal trial unbiased(2) impeachment is the only check on the judiciary

Powell justiciable cuz based on fixed qualificationsNixon non-justiciable cuz the legislature was given a power and the discretion for the legislature to figure out how to carry out thatpower

there is a textual commitment to another branch so the judiciary will not touch it

> when a fundamental right is injected into a case that is non-justiciable, the case becomes justiciable

non-justiciable questions:-guarantee clause-impeachments

-expulsion-termination of a treaty-amendment procedures-political gerrymandering-many issues involving foreign affairs

Congressional Regulation of Judicial Power

-article III > federal judicial power rests in one SC and whatever courts Congress chooses to create

but does the C contemplate essential functions for each branch of the fed gov and under this view are the cts to do a few things:-protect indv rights-

and does congress strip the judiciary of these rights when they try to take these rights away?

Jurisdictional Stripping > Congress cannot strip JUR in a way that violates fundamental rights

Ex Parte McCardle-congress passed a statute that gave the fed cts authority to hear writs of HC-petitioner filed writ of HC but while it was still pending in the SC, congress wanted to repeal the act

(cuz they feared that SC was about to hold the Reconstruction Act unconst)-SC did dismiss the case due to lack of JUR-but note that petitioner could still apply to the SC via cert. (so is still constitutional- cuz petitioner still had another avenue)

> so the SC JUR was not really stripped

Limiting Lower Federal Court Jurisdiction


5/25

-given the fact that congress has the latitude to even create these courts, many think that congress should have broad discretion to limitits JURSupreme Court Discretionary Review

- 2 avenues for appeal to the SCo as of right for civil rights cases

o by cert

-Rule of 4> need 4 justices to agree to accept the petitionstandard of review > by judicial discretion

factors: -2 US ct of appeals are in conflict with each other-state ct of last resort has issued opinion conflicting with other state ct of lastresort or US ct of appeals-important question of federal law

Week 3

Analysis of Congressional Action

(since the powers of congress are enumerated, rather than inherent)To determine the constitutionality of congressional action, consider 2 questions:

(1) What constitutional provision supports the action?(2) What is the scope or extent of the constitutional provision?

Congressional action can be invalidated if :(1) Congress has exceeded the scope of power granted by the constitutional provision OR(2) Congressional action violates some specific constitutional limit on federal power, such as protections contained in the

Bill of Rights, etc

Primary Congressional Powers (Enumerated)Article I section 8

(1) power to tax(2) power to regulate commerce (Commerce Clause)(3) to make all laws which shall be necessary and proper for carrying out the foregoing powers

(Necessary and Proper Clause)

(4) etc

Necessary and Proper Clause

not in itself an independent poweronly exists in respect to carrying out the above powers

the issue is the SCOPE of the NCP clause

McCulloch v Maryland

-Federal gov chartered the 2nd national bank, but many states opposed these banks operating in their states; so MD tried to impose anoperating tax on the federal bank (cuz the economy wasnt doing so well)

Issue 1 > does the FG have the power to create this bank? (if not, since states have retained inherent police powers, they can tax)> the fed gov has explicitly been given the power to regulate commerce between the states AND

> the Necessary and Proper Clause gives the Fed gov the power to do what is necessary to effectuate this(IMPLIED POWERS)

> and the NCP clause IS tied to the enumerated power to regulate commerce> congress needs means to carry out the ends of the enumerated powers>if every single means of effectuating a grant of power was spelled out in the C, no one would be able to read it; we have todeduce from it (it is merely an outline by design that contemplates implied powers)

Issue 2 > the SCOPE of the NCP clause

the SC here interpreted necessary as not merely convenient but not that it is the ONLY means

TEST > Congress may choose whatever means it deems convenient to carry out an enumerated power


6/25

Term Limits

-states have no power to add to the qualifications for members of congress laid out in Article I> the point of these qualifications being laid out was to ensure consistency amongst the states in qualifications of reps/senators

Gibbons v Ogden

Pre-emption > flows from Article 6; federal laws trump state laws> but for pre-emption to apply both the state and federal law have to be valid (constitutionally)

(1) express- congress says in the statute that state laws in this area are pre-empted(2) conflict- when it is physically impossible to comply with both a state and federal law

-or is possible to comply with the state law but doing so would subs. frustrate the fed law(3) pervasive/comprehensive-congress regulates an area so comprehensively that it demonstrates that

congress meant to exclusively regulate this area

-NY statute gave 2 guys exclusive rights to navigate steamboats in state waters; Congressional grant gave Gibbons right to navigatethose waters; Ogden sues Gibbons

-Does congress have the power to issue this license and if they do, then the state license will be invalidated (via pre-emption)-unless, the state license serves some other state purpose

Issue 1 > what is commerce

not limiting to buying and selling; would include navigating (pretty obvious)

Issue 2 > Scope of commerce clause

G can regulate commerce that (1) crosses state lines or with (2) foreign countries (3) or with Indian Tribes

And this power is SOLELY given to the FGo But is restrained and protected from abuse becuz congress consists of elected officials

Cannot regulate commerce that is exclusively within the boundaries of a state

ct rules that this is a question for Congress to decide

The Lottery Case

Analysis(1) Identify the activity; the focus of the activity(2) Does it pertain to the regulation of interstate commerce?

-lottery tickets transported from state to state does fall under the power of the FG to regulate interstate commerce> to prevent the states that have decided not to have lotteries from being polluted by them

(cant regulate the lotteries exclusively within the actual states though)

Does the power to regulate commerce also include the power to prohibit it? > YESProhibition of some things can be a means to effectuate their power to regulate commerce

> first time Ct ruled that Congress has the power to prohibit commerce

Administrative Agencies

-get their power through a delegation of power through congress

For a delegation of power to be valid, it must not validate the non-delegation doctrine> congress must provide an intelligible standard for the agency to follow

Shreveport Case

-ICC (federal agency) fixed RR rates from Louisiana to TX; ICC also ordered the RRs to raise their rates for intrastate shipments tothe same TX markets; TX had been giving lower intrastate rates for shipments just within TX than what the ICC ordered for that area

> the purpose of FG regulating commerce IS to avoid rivalries, between states-FG cannot regulate the commerce that is exclusively within a state> want to avoid the risk of multiple burdens


7/25

BUT if something exclusively within a state impacts interstate commerce, then they can regulate that(if it substantially affects interstate commerce)

substantially affects > if economic- will be considered in the aggregate (likely to impact interstate) (farmers)if not economic- will not be aggregated (not likely to impact interstate) (gun possession)

close and substantially relation is a precursor to the direct effect test which has been overruled(the old test-above- focused on the relation of the activity to commerce) dont use this on exam-the new modern test focuses on the EFFECT of the activity on commerce- USE this on the exam!

SUBSTANTIAL EFFECT TEST

*note that when goods are flowing through something (like a stockyard) that is an inseparable part of the flow of commerce andcongress can regulate it

Hammer v Dagenhart

-Congress cannot impose standards for the employment of children within the various states-based on the notion that the production of goods is purely a local matter; regulation of which is solely reserved to the statesunder the 10th amd

> conditions of production cannot be regulated if purely in the states(vs. transportation, which can be regulated if it affects interstate commerce)

-unlike the transportation cases, in this case there is nothing moving between the states in this issue

-Congress has no power to prohibit unfair competition; no power to equalize such conditions> an attempt to preserve state authority over matters that are purely local

violates both prongs of the analysis of a congressional action test> so it is not valid

BUT TODAY- THIS IS NO LONGER THE LAW > CUZ IT MEETS WITH THE SUBSTANTIAL EFFECTS TEST> so congress can regulate production

Week 4

The New Deal, after the Great Depression, instituted all sorts of federal regulations-the SC immediately struck down 6 of them

-when thinking about these cases, think about the stream of commerce theory

Schechter Poultry v US-SC struck down a code adopted under the National Industrial Recovery Act to regulate hours, wages, etc in the poultry slaughteringbusiness in NY when most of the chickens came from out of state suppliers

-ct said that the regulation fell outside of the commerce power becuz the regulated conduct had no direct effect uponinterstate commerce-the local sale of poultry does not impact other states

> Direct Effects Test (*which is later tossed out)

Carter v Carter Coal-SC said that they could not force coal union members to abide by hours, wages determined by the Coal code

-regulation of wages and hours falls primarily within production which is purely a local matter> if the commerce clause were construed to have a direct effect upon every enterprise and transaction, there would be no limits uponfederal power

-it is not the quantity (volume) that matters, it is the qualitative relationship to interstate commerce-applied direct effects test

NLRB v Jones-SC upheld the National Labor Relations Act to the nations largest steel producer-congress can regulate wages, hours, etc when the effects would actually go so far as to substantially impact interstate commerce

> involves into a close and substantial relation test-which essentially becomes a quantitative analysis when you start thinking about aggregation, etc-the focus here was on the magnitude


8/25

US v Darby-the Fair Labor Standards Act was created to keep goods out of commerce that were produced in conditions detrimental to decentworking conditions-lumber co in GA is shipping its lumber interstate and is violating the FLSA-SC rules that the G can prohibit under the commerce clause

-congress has the power to create any regulation of commerce short of something that infringes on constitutional rights> we have to determine if what these employees do has a substantial effect on interstate commerce

> if so, then congress can regulate it even though it is purely intrastate> it is a quantitative analysis!> court explicitly overrules the notion that intent is controlling

Commerce Clause: Direct effect > Close and substantial Relation > Substantial Effect

Wickard v Filburn-SC upheld a penalty imposed on a wheat farmer for raising an excess of wheat over what he was allotted-even though it was just for his personal use, and trivial on its own, when you aggregate the effects, it has a substantial effect oninterstate commerce

-cuz it impacts prices all over the nation>overrules the direct effects test/ also says that there is not necessarily a distinction between economic / non-econ activities

> congress can regulate any activity, even local non-economic activity, as long as it substantially impacts interstate congress> it does NOT matter that his activity on its own had no substantial effect on interstate commerce!

> its the aggregate effect that matters!(when looking at the substantial effects test, you look at the class as the whole, not whether the indv has an impact)> substantial effect is measured in the aggregate

US v Sullivan-SC upheld the conviction of a retail pharmacist who failed to affix warnings to pill boxes-he had obtained them through a wholesaler who got them through interstate commerce-the act is designed to protect the consumer all the way from their introduction to interstate commerce to delivery to the consumer-congress can regulate from when it begins into interstate commerce and this power continues all the way to delivery to the consumer

(even at the point when the goods are being held for local sales)

Heart of Atlanta Motel-hotel whose primary source of business is interstate highway guests refused to rent rooms to blacks-enforcing the Civil rights act through the commerce clause

> yes the burdens of discrimination have a substantial effect upon interstate commerce-cuz blacks cant travel if they cant find lodging> just cuz it happens to protect against a moral wrong does not mean that it is any less of an impact on interstate commerce\-the discrimination had a quantitative effect on interstate commerce

Katzenburg v McClung-SC upheld application of Title 201 to a Birmingham rest; the rest. Refused to serve anything but take-out to African Americans-there is a lot of evidence that racial discrimination has a big impact on interstate commerce

-makes it tough for African Americans to travel and engage in commerce and impacts flow of commerce generally-SC also applies the aggregation theory

US v Morrison-girl (pursuant to a federal statute) sued a fellow student who had assaulted her> yes, the bounds of the commerce clause have been expanded, but they are not limitless

Commerce Clause give the G authority to regulate:

(1) use of channels of interstate commerce

(2) instrumentalities of interstate commerce even though it is purely an intrastate activity

(3) those activities that substantially affect interstate commerce (substantial effects)

*use the above as the analysis for the EXAM!

-its crime and non-economic so congress cannot regulate it under the commerce clause-and has no substantial effect because you cannot aggregate them


9/25

US v Lopez-SC held that the Gun Free School Zones Act exceeded Congresss authority under the Commerce clause-criminal act has nothing to do with commerce-no findings that gun control has any substantial effect upon interstate commerce

-but note that even if the legislature had found that, it does not mean that the court has to agree with their findings*the only time they will overturn their findings is if they find that they had no rational basis

-there is not a legitimate reason for the law or that the means are not rationally related to the goal of the lawthat is sought

> plus, we find that the effect was attenuated between gun control and commerce-if we were to uphold this it would give G unlimited power under the commerce clause

> puts the distinction back in > if it is non-economic, congress cannot regulate it under the commerce clause

Gonzales v Raich-SC upheld Congress power to apply the Controlled substances act-Congress can regulate purely intrastate activity that is not in itself commercial if it concludes that failure to regulate that class ofactivities would undercut regulation of the interstate market in that commodity-state of CA had made it legal to grown marj. for medicinal purposes-here congress had a rational basis for finding that the aggregate effect would have a substantial effect on interstate commerce

> the activity does not have to be commercial (economic) as long as there is a national market

> the fact that we have a commodity is the difference between this and Lopez*a commodity that if unregulated, would have a substantial effect upon the national market

Federal Taxing and Spending Powers

Article I sec 8 gives G the power to>To tax and spend for the general welfare

(NOT to REGULATE for the general welfare)TAXATION TEST

Bailey v Drexel Furniture Co-held that a federal tax on the net profits of users of child labor was invalid becuz it was a mere penalty that regulated an exclusivelystate function

RULE > if its function was to penalize, not to collect revenues on some commodity in proportion to the amount produced- then it is invalid- the tax cannot be a detailed regulation of a matter of purely state concern

- but you can use a tax to regulate a commodity, just not to regulate a matter of state concern- OR , a tax is valid if it is designed primarily to raise revenues (1)

if Congress cannot regulate directly under the Commerce Clause, then it cannot regulate indirectly through taxation

BUT if it is an area that the commerce clause permits congress to regulate an area, it can tax as a means to regulate thearea (2)

SPENDING TEST

> if congress enacts an ordinary spending measure, the primary issue is:

-whether it has spent for the general welfare of the US

*and Congress has wide latitude to determine what is for the general welfare and the court will uphold a spending measure ifthere is any rational basis for Congress conclusion that the law will advance the general welfare

> if congress imposes conditions upon states receiving federal fund, the analysis summarized in SD v Dole applies

Butler-the court said that the Agricultural Act was invalid becuz it regulates a state reserved power(tax breaks for farmers who contract to grow less product is more of a regulation of a state concern)

-the power to tax/spend is an enumerated power, subject to the limitation that it must be for the general welfare


10/25

2 ways to invalidate a federal law:(1) knock out the source of power(2) show it violates another constitutional provision

*the G argued that the act was constitutional becuz compliance was voluntary, BUT the ct said, no it was coercive-this is coercion by economic pressure

(and even if it was voluntary the act is still invalid becuz it regulates a reserved state police power)

the court adopts Hamiltons view that the power to tax and spend confers a separate power distinct from the otherenumerated powers (just limited to for the general welfare)

Steward Machine v Davis-Soc Sec Act imposes a tax on employers; employers got 90% of the tax back if they established an unemployment compensationsystem> the court here upholds the act > is definitely for the general welfare > the tax is securing national economic security

IS IT A LEGITIMATE END AND WILL THESE MEANS ACHIEVE THAT LEGITIMATE END?*plus, it was something that the states wanted to do anyway

-just hadnt cuz they didnt want to be at a disadvantage if other states didnt> just becuz you receive a reward, does not necessarily mean that the tax is coercive

South Dakota v Dole-SD had a drinking age of 19; but congress enacted a statute that said if you want federal money for highways, you cannot sell alcohol

to persons under age 21-ct upheld the statute cuz it meets the below test:*plus it was not coercive, becuz it only withheld 5% of funding if you dont comply

> where you draw the line on what is coercive is a good thing to test on an exam

5 Point Test > (1) Federal spending power is limited to the general welfare(2) if Congress wants to put a condition on receipt of federal funds, it must do so unambiguously(3) conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national

projects or programs(4) the condition cannot violate any other constitutional provisions(5) does the financial inducement become coercive?

*so what if it is invalid under Dole, what is the next analysis > then you go to the commerce clause analysis

Sabri v US-congress has the power to make it a federal crime to bribe state or local officials whose government agency received federal funds inexcess of $10,000-they bypass the states and apply it directly to the people

Foreign Affairs

Treaty > an agreement negotiated between the president and the chief executive of another country*senate has to approve treaties by a 2/3 vote*carries more weight than an executive agreement-can the president unilaterally terminate a treaty after senate has approved it? > yes

*but then congress can OK it again by adopting a statute implementing the same terms contained in the treaty*and even if president vetoes that, congress can override his veto with a 2/3 vote

> if a treaty and a statute conflict, which ever is more recent controls

2 kinds:(1) self-executing contain all the necessary details and have the force of law automatically(2) non self-executing lack the details and does not have the force of law until congress enacts implementing

legislation/statute by a majority vote

Executive Agreement > an agreement entered into by the president and the CE of another country*but is not ratified by the senate


11/25

Missouri v Holland-congress passes a statute implementing a treaty with Canada to protect some migratory birds-this was a non self-executing treaty> as long as a treaty is valid, congress has the power to enact a statute executing the treaty and a necessary and proper means ofregulating foreign affairs

a treaty is an independent source of power for congress which is derived from the treaty clause and the intrinsic power overforeign affairs

under the supremacy clause, treaties take precedence over conflicting state laws but the constitution is the supreme law of theland and a treaty cannot authorize the violation of constitutionally protected rights

*Congress power to regulate foreign affairs is not limited to making treaties

Intergovernmental Immunity

-deals with FG trying to apply their laws to states and states trying to apply their laws to FG

*federal immunity from state taxes is derived from the supremacy clause-direct state taxes on the FG are not permissible-indirect state taxes on the FG may be permissible

*state immunity from federal taxes-the FG can tax states but there is immunity in some situations-but hasnt articulated which situations very clearly

To determine whether an act of congress violates the 10th amd, what do you first have to do?(1) who is congress legislating against? States or states and/or individuals?-when congress legislates against BOTH states and individuals, congress is the check on congress-when congress legislates just against the states, the courts are the check on congress

Massachusetts v US-upheld a federal aviation tax

-it was non-discriminatory (so the rest of infringement on essential state functions was minimal)

Garcia v San Antonio Transit-if you are applying the same standards to states and individuals, then the FG can do it-congress has the power to extend the FLSA to the states > congress protects states from congress

> the state reps/senators will think about what encroaches upon their state functions and willvote accordingly

Printz v US-congress commandeering of state executive officers violated the system of dual sovereignty mandated by the structure of the

constitution; it was unconstitutional cuz it commandeered local LE officers*if it commandeers state legislature or a state officer, it is invalid

*note that the FG can prohibit a state officer from doing something (cant disclose X)-different than mandating that a state officer DO something (do background check)

-here, the ct invalidated a provision of the Brady handgun act that required local officers to do a background check for gun sales-this is different than Garcia cuz this is only the state that is being regulated (no individual regulation)


12/25

Separation of Powers

*one branch has infringed upon another branch

-when the C expressly grants a branch a power, it is an easy issue, but it becomes more difficult when it does not expressly do so andyou have to balance the interests*essential attributes of the branches (power) v rights*

courts > check other branchesprotect individual rights

president > commander in chieftake care that the laws be faithfully executed

*can the president pardon state offenses? no, he can only pardon federal offenses2 power sources for the president:

(1) congress delegates him the power-express delegation-implicitly through acquiescence (silence or inaction)

(congress knows what the P is doing and does nothing about it)(2) inherent powers through the constitution

Formalism v Functionalism

Formalism > the power of each respective branch is reserved to that branch; Congress makes law; President executes the law; and thecourts are a check on those roles

Functionalism > there are three branches and their respective powers primarily fall under that branch, but there is more flow between

the branches; they overlap more

Youngstown Sheet v Sawyer-during the Korean war, the steel mills were about to strike and the Pres issued an executive order to seize the mills-congress had already explicitly rejected this method-steel mill argues that it is congress power to make laws and the pres to carry them out

*use this analysis on an exam for a presidential powers analysis

(1) where is the presidents source of power coming from?-constitution-congressional grant

*if not from the constitution(2) Jacksons 3 Zones in which one could challenge the Presidents powers:

(1) when President acts pursuant to an express or implied authorization of congress, his powers are at a maximum-the only question is have C and P denied someone a constitutional right?

(2) when President acts in absence of a congressional grant or congressional denial, his powers depend on the circumstances-twilight zone of concurrent or uncertain authority-generally involves a question of inherent authority and essential attributes

(3) when the President acts incompatibly with an act of congress, his powers are at a minimum-he can rely only upon his own constitutional powers minus any of congress over the matter-the president will generally lack power here unless the act of congress is unconstitutional

*the more his actions are in accordance with congress, the more deference will be given to his actions


13/25

Dames and Moore-court upheld executive agreement becuz it had been taken pursuant to an act of congress-although the congressional act did not explicitly grant the power to suspend claims (which is what the EO did); it was implicitlyauthorized by the act of congress > so zone 1 > highest deference cuz supported by congress implicitly through acquiescence

US v Curtis Wright-the president proclaimed an embargo (pursuant to an act of congress) to prohibit the sale of arms to Bolivia and Yugoslavia (to try tokeep the peace between the 2 countries)> zone 1 > court rules that the president has even more power in reference to external affairs- often he is more qualified to make these decisions due to security clearance, etc> president has more flexibility in external affairs than in internal affairs > he is our sole representative to other nations- the president only being able to do what the NP clause allows him to do applies only to internal affairs

War Powers

Campbell v Clinton-congress says that P violated the War Powers Resolution by directing armed forces participation in Yugoslavia-P authorized cruise missile attacks and then within the requisite 48 hours brought it before congress-congress voted against war but also voted against requiring the P to immediately end US participation in the NATO operation>ct ruled congressmen lacked standing> concurrence said that this was a political question and there is no standard for what is war

> what is war as in the grant of congress to declare war

-if the airstrikes were war then P violated the war provision cuz only congress can declare war BUT-if the airstrikes were not war and merely a response to defend, the president was not outside of his scope

*says that it is a matter of who started it> concurrence says that it IS justiciable!

Individual Rights

-the Constitution contemplates a more limited role of the court during times of war/invasion

> only congress has the right to suspend the writ of habeas corpus during times of war (the president does not)-and also limits the role of the court to re-instate it

How much habeas are the detainees entitled to?-depends on if you focus on power or rights

-the suspension clause is not violated if the G provides an adequate substitute procedure for habeas (adequacy) determined by thecourt)

Framework*initial captures at the battlefield are not entitled to any due process at the onset, rather process is only due when the military continue

to hold them as detainees*after the G determines that a person is an enemy combatant, the issue becomes, how is this determination to be made*if a person IS determined to be an enemy combatant, who is supposed to try the detainee

Hamdi v Rumsfield

-P had a delegation from congress to use any and all necessary force against those he determines to have aided in the attacks-D was a US citizen (Afghanistanian) who had gone to Afghanistan right before the attacks; he is picked up and detained as an enemycombatant

-can G hold US citizens as enemy combatants without habeas?-they have to be told the factual basis for their detention AND-they have to be given an opportunity to rebut before a neutral decision maker

*the court here is looking at > did congress provide the requisite alternative process?

-like an appropriate military tribunal

To determine if a person has been deprived of a fundamental right(1) weigh the private interest that will be affected against Gs asserted interest


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(3) considering whether the process would address the erroneous

Hamdan v Rumsfield- the court held that the detainee treatment act (which said that no court could hear these cases) does not apply to cases that werepending when the act was instituted- you can substitute a military tribunal to try citizens under certain circumstances (mainly during times of war)-zone 3 applies (cuz prior acts of congress had prohibited this)

(Week 7 notes)> terrorism cases likely to be on the exam

Week 8State Power to Regulate

*under the dormant commerce clause, G has the power to regulate commerce, but has not acted> the question becomes > is that power exclusive to the fed G or is it concurrent state power

(1) exclusive(2) concurrent

*a DCC issue arises when a state in the absence of a federal statute that pre-empts a state law in the absence of a fed law that interfereswith congress

*becuz the commerce power lies with congress, congress may grant the state the power to interfere with ISC even though a court mayconstrue the state action as violating the DCC

(1) when commerce enacts a statute under the commerce clause, it always pre-empts a state law(when congress acts under a power, a federal law may pre-empt a state law)

(2) even when congress has not enacted a statute or when congress has not but nonetheless finds pre-emption under the dormantcommerce clause

States have certain inherent police powers(but those might be invalid if):

(1) the state law is pre-empted(2) not pre-empted (through affirmative commerce clause) but the state law unduly burdens commerce

(through discrimination or burden)

Gibbons-police power v commerce power*the court discussed but did not decide whether the grant of power to regulate commerce to the G implicitly left the states with nopower to regulate commerce (exclusive)-can states regulate what has not been regulated by G or does G have exclusive power*states have police powers and in the exercise of those police powers may at times interfere with Gs power to reg ISC

> but what happens when it severely burdens ISC

Cooley-uniform national v diverse local-SOME aspects of commerce need to be exclusively regulated by congress (need for a uniform regulation) and

OTHER aspects of commerce need to be concurrent with the states power(until congress shall find it necessary to exert its power)

Modern Test(comes from Pike)

if the state law (even if for police powers) burdens ISC-in a discriminatory way > illegal per se-in a non-discriminatory way > apply Pike >


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2 Exceptions to the DCC(1) congress delegates the power to the state

Prudential > congress can delegate this power back to the state(2) market participant exception

Dormant Commerce Clause Analysis

(1) states have police powersunless:

(1) the state law is pre-empted OR(2) the state law violates the DCC

*start with the pre-emption analysis >-if congress has acted, and a state seeks to regulate an activity, you have a PE issue- you need to look at the activity

(1) is the activity that FG regulates a valid exercise of commerce (do a commerce clause analysis)(2) is the state law a valid exercise of police powers

-if both are valid, then you need to see if the state law is pre-empted(1) congress expressly pre-empts a state law(2) there is a conflict between the F and S law; not possible to comply with both or compliance

would frustrate the purpose of the F law

(3) congress has so pervasively regulated the area that a court can reasonably infer that congressintended to regulate the entire field

(ultimately looking at the intent of congress)*note that the pre-emption analysis will only apply if there is a VALID federal law

*note that on the exam, it is not going to be pre-empted..but still do the analysis

*so then, if not pre-empted, then see if the state law violates the DCC >

(1) does the state law discriminate ISC

(1) facially > a state law that treats out of state business differently than in state(2) purpose or effect > (facially neutral but still discriminates in purpose or effect)

- doesnt treat out of state differently but still discriminates*note that the court has never clearly laid out what level of purpose/effect is necessary toconstitute disc.

-does it exclude out of staters from the market or impose a cost on them?

*if it is discriminatory > then you apply strict scrutiny-the burden shifts to the state to establish that the law is narrowly tailored to achieve a stateinterest*if reasonable non-discriminatory alternatives are available

* a state law that amounts to simple economic protectionism is virtually per se invalid

- becuz there is no valid G interest in furthering state economic protectionism

*generally state laws that discriminate are going to be invalid, but not always*while state laws that burden are typically going to be valid

-if it does not discriminate, it simply imposes a burden and you apply the Pike balancing test

(2) does the state law burden ISC> if it is not disc., then it simply burdens

legitimate state interest (ie- police power) against the burdenand see if there are any other reasonable less burdensome alternatives available


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identify LSI { balance (Pike analysis)identify burdensee if there are any less burdensome meanssee if there is a risk of multiple burdens

Hughes-state law banned exporting minnowsFD, compelling state interest, not narrowly tailored, ND alts availableAnalysis > facial discrimination

-invalid

BaldwinFD, EP, no compelling state interest, not narrowly tailored,-invalid

DeanFD, less burdensome means available,-invalid

Breard-valid-non-disc, burdens, but social interest

Hunt-discriminatory, PE

Subsidies*states can advantage their residents with a subsidy, but they must do it in a way that does not discriminate against out of staters

> the subsidy has to come out of a general fund?

Week 9

-DCC continued

-a law passed by a local G (city/county) can violate the DCC, so the state cannot get around the DCC in that manner*Scalia dissent important in ?

Preserving Natural Resources-states cannot hoard their NR, breaks down notion of national unified economy-NR can be deemed articles of congress, so the prohibitions of the DCC apply

Regulation of Transportation *might be a transportation reg case on exam-if not discriminatory, you do the Pike burden analysis

*does the state interest outweigh the burden?*when discriminates > likely to be invalid*when burdens > more likely to be valid

-apply Cooley > there is a need for a uniform regulation here*Rehnquist dissent important in Kassel important

Market Participant exception*remember that the first exception to the DCC is when congress authorizes the state to interfere with the DCC-the market participant exception is the 2nd exception to the DCC-a state can be a participant in the market and discriminate (getting around the DCC), but the state cannot be a market regulator and

disrciminate-the state is a MP when it is a party to a contract and it is making decisions under that contract

> even if the state law discriminates, it may still be valid if the state is acting as a market participant*why is OK when the state is acting as a MP as opposed to a market regulator?

> the state is acting like a private business and should be able to act that way> * the CC responds principally to state taxes and regulatory measures impeding free trade in the nationalmarketplace; there is no indication of a constitutional plan to limit the ability of the states themselves to operatefreely in the free market

the MP doctrine allows a state to impose burdens on commerce within the market in which it is a participant but allows itto go no further; the state may not impose conditions that have a substantial regulatory effect outside of that particularmarket

becomes a market regulator if the state attempts to regulate a contract it is not a party to


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*just because a law does not violate the DCC, does not mean it does not violate some other constitutional privilegesuch as >

Privileges and Immunties Clause

(Article 4, sec 2)*the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states

> prohibits states from discriminating against non-residents of the state in regard to state granted rights

(contrast with)*the 14th amd relates to federal rights and privileges(rights of national citizenship)

DCC v. PI clause-congress cannot consent to a violation of the PI clause (whereas they can consent to violation the DCC by granting power)-you have to be a citizen to be protected by the PI clause-the PI applies only to discrimination; whereas the DCC also extends to burdens

*purpose of the PI clause > to place citizens of each state upon the same footing with citizens of other states, as far as the advantagesresulting from citizenship in those states is concerned

Does the law violate the PI clause?*can apply to local municipal laws as well as state laws(1) does it discriminate? (regarding a constitutional right OR an important economic interest)

-if discriminatory > the state must establish a substantial reason for the discrimination ANDthe discrimination must be substantially related to achieving the states objectives

*the PI clause cannot be cast aside for the market participant exception

Contract Clause(Article 1 sec 10)*no state shall pass any law impairing the obligation of contracts

(1) freedom on contract is a basic right protected as an economic liberty under the due process clause(2) the G can only interfere with this right if has to do with a valid police power

(3) the judiciary can ensure that it is a valid police power

*the court will uphold a state economic regulation as long as it has a rational basis*why have the contract clause >

Analysis

For private contracts:(1) the court will balance the prohibition on state impairment of contracts against the state assertion of police power

-does the state law substantially impair an obligation under an existing contract (but not a future contract)-is the impairment supported by a significant and legitimate public interest (important general socialproblem) AND-are the means chosen to achieve the public purpose rationally related to achieving the goal

For public contracts:(1) when a state is a party to the contract, the court will apply a heightened standard to balance the prohibition on

state impairment of contracts against the state assertion of police power-is the impairment both reasonable and necessary (means) to serve the admittedly important purposes (end)claimed by the state

*the K clause applies to states and not the FG; challenges to action by the FG must be brought under the due process clause, subject torational basis review

5 Factors-an emergency need to protect the vital interests of the community-the law was not designed to favor a special group but was for the protection of a basic interest of society


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-the relief was appropriately tailored to the emergency-the conditions imposed were reasonable-the legislation was temporary in operation and limited to the exigency which called it forth

*note that there is no impairment of the K if the parties anticipated legislation*when a law is designed to address a general social problem, chances are it is going to be upheld

Week 10

Article 3 Cases and Controversies considerations*requirement that limits Fed JUR to certain categories

Judicial Review

Private Rights Model-focuses on the specific injury to the specific individual

Public Rights Model-the court can make rulings that apply in a broader sense to others than just the individual harmed*this broader model has been adopted

5 Justiciability DoctrinesPolitical Question

Prohibition on Advisory OpinionsStandingRipenessMootness

Prohibition on Advisory Opinions

*Fed courts cannot issue an AO becuz they lack JUR to do so

(1) executive requests an AO from the court(2) congress confers JUR upon the ct to hear a case and issue an order but the statute also says that the exec does not have to

follow the order if they do not agree with it

*congress cannot authorize a court to hear a matter beyond its article 3 JUR (cannot expand its JUR)

What is required for a case to not be considered an AO: (meaning, it is a case and controversy under article 3)(1) an actual controversy(2) between adverse parties and(3) a substantial likelihood that a decision will have some effect

*so how can you have a declaratory judgment > the court is asked to define the legal rights between the parties;-even though no consequential relief is awarded

-the court will hear a suit for DJ provided that it meets the article 3 requirements

Standing

*if you dont have standing, you will never get to the merits of the case> whether a person is the proper party to bring a matter before the fed court to have the court decide on the merits of the claim

Considerations:who is suingwho is being suedwhat is the injurywho is causing the injurywill an order from the court stop the injury from occurring

Article 3 Requirements:(1) injury


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-an injury in fact > an invasion of a legally protected interest which is concrete and particularized and actual orimminent (not conjectural or hypothetical)

(1) economic(2) non-economic (aesthetic, environmental, reasonable concerns, chance to compete)

*someday intentions are not sufficient to show actual injury

(2) fairly traceable-causation > causal connection between the injury and the conduct complained of

*the injury has to be fairly traceable to the challenged action of the D* a probability assessment

-does causation depend upon how the injury is framed? (YES)> inability to obtain a benefit (might be too speculative as to causation)> inability to compete on an equal basis (there is causation, he did not have the ability to compete)

(3) redressable*it must be likely (not merely speculative) that the injury will be redressed by a favorable decision

-a P must demonstrate standing separately for each form of relief sought(each aspect must not be too speculative) (damages, injunctive relief, etc)*the damages sought might impact whether it is redressable* a probability assessment

*if these are not met, you are out*either party, or the court, can raise the issues of standing, mootness, ripeness, PQ, AO at ANY point in the case

> since its jurisdictional, you dont have a right to waive it

Prudential Limitations on standing:

(1) there is no 3rd party standing*you can only litigate a claim that involves you

-subject to some exceptions:

Test:(1) the litigant must have suffered an injury in fact this giving him a sufficiently concrete interest in the

outcome of the issue in dispute AND(2) the litigant must have a close relation to the 3rd party AND(3) there must exist some hindrance to the 3rd partys ability to protect his or her own interests

(*see Powers v Ohio)

*Association Standing (another type of 3rd party standing exception)-the association has standing to bring suit on behalf of itself or on behalf of its members if:

(1) its members would otherwise have standing to sue in their own right under article 3(2) the interests at stake are germane to the organizations purpose(3) neither the claim asserted nor the relief requested requires the participation of the

individual members of the lawsuit

(2) no generalized grievances*citizens generally lack standing to require that the G not waste public monies

-viewed as the injury being too remote

Civil Procedure Requirements:*the party invoking fed JUR has the burden of establishing standing

Tax-Payer Standing- a generalized grievance exists when a P sues simply as a citizen to have the G follow the law or as a tax payerseeking to have the G restrained from certain expenditures

*taxpayers generally do not have standing to challenge an expenditure (not specific to the P)


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Exception:Double Nexus Test for Taxpayer standing:

(1) congress must have acted under its taxing and spending power(2) to establish religion

*focus is on whether the taxpayer has suffered an injury or is it too remote/speculative

Congressional Power to Create Standing-congress can legislatively force courts to ignore prudential limitations (such as the prohibition on 3rd party standing)but cannot eliminate the constitutional requirements under article 3

(1) there is an article 3 problem; congress cannot waive the 3 constitutional requirements(2) there is a separation of powers problem; if anyone can sue the executive regarding the administration of the law

that transfers the powers of the executive to the court

Mootness

-the court cannot issue an AO, you need an actual claim that meets article 3 req; and that must exist ALL throughout the suit-so if there is a change that takes away one of the 3 reqs, then at any time, the suit no longer has standing

> it becomes moot; mootness can be raised at any point

3 exceptions > (based on policy considerations)

(1) case will not be dismissed as moot because of voluntary cessation of the complained of activity unless it could besaid with assurance that there is no reasonable expectation that the wrong will be repeated

(2) case will not be dismissed as moot if it is capable of repetition (the injury is likely to happen to the P again)(3) case will not be dismissed as moot where a secondary or collateral injury remains eve if the main injury has been

decided; not moot becuz an injury remains

*there is an exception to mootness for class action suits

Ripeness

-consideration of matters that are too premature and thus too speculative> to avoid premature adjudication

*when may a party seek pre-enforcement review of a statute or regulation

test:(1) the hardship of the parties

focus is on whether anyone has suffered actual or threatened harm by application of a statue-what level of injury will the P suffer if the court refused to hear the case* a hypothetical threat is not enough

(2) the fitness of the issues for judicial decision-is it a purely legal issue ? OR-does it depend on factual development ?

Week 11

*even if a case satisfies the other requirements, it still may be barred by the 11th amendment

11th Amendment* a person cannot sue a state in federal court for money damages*is essentially a diversity prohibition*meant to override Article 3

> there are a few exceptions

Sovereign Immunity > doctrine that prevents a state being sued without their consent in FEDERAL COURT!

Chisholm v Georgia > SC citizen sued the state of GA in federal court pursuant to the language of Article 3; the court allowed it*the states were outraged and immediately after, the 11 th amd was enacted


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Hans v Louisiana > the 11th amd also bars actions by citizens of the respective state against the state in federal court*states cannot be sued by their own citizens

*the states have sovereign immunity beyond what is given to them by the 11th amdpolicy reasons > if states can be sued for monetary damages, then it would leave them unable to provide for citizens

Underlying debate: (on exam)

Broad view > states possess SI that extends beyond the text of the 11th amd; states had inherent SI before ratification of theconstitution and it has survived

Narrow view > states dont possess inherent SI from suit; they only have the explicit SI given to them by the 11 th amd; 11thamd restricts only diversity jur in federal courts

11th Amendment Analysis

(1) Is the P one to whom the amendment applies?(2) Is the suit truly against the state?(3) Is the suit seeking relief in a manner that is barred by the amendment?

-is it asking for damages (retroactive) or is it asking for injunctive (prospective) relief(4) Has the state waived its immunity?(5) Is there a valid federal statute in the area that overrides state immunity?

General Rules

the 11th amd bars suits in federal courts against states by their own citizens and citizens of other states for moneydamages

does not apply to suits brought by individuals against states in state courts!

There are various exceptions to the 11th amd

Why have exceptions > judicial review > if not states would be completely insulated from federal ct review

Ways around the 11th Amd:

(1) a citizen can sue a state officer for injunctive relief for violating federal law (ex parte Young)

-retroactive relief (monetary damages) that comes out of the state treasury is NOT allowed-but prospective injunctive relief is allowed (even if it actually will cost the state more money)-*the state officer can be held liable for monetary damages though out of his own pocket

To use this exception (and avoid the 11th amd), the P must:(1) sue the state officer

(2) make a prima facie equal protection clause (14th amd) case-disparate impact (treats different classes of people differently)-state intentionally discriminated

*necessary to make sure that federal government can enforce the 14th amd against the states*think about the legal fiction aspect of these cases for the exam

(2) Waiver by the state* state may waive the 11th amd immunity through an express but not implied waiver

-provided that it specifies its intention to be subject to suit in federal court

(3) Federal and State Sudivisions*the 11th amd does not bar states from suing other states and the federal G and states suing eachother

-also applies to state subdivisions

> Union Gas, which said that congress can authorize suits against states pursuant to the commerce clause(or any of its constitutional powers)

> has now been overruled*congress cannot authorize suits against states pursuant to the commerce clause


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(3) Seminole Tribe > overruled Union Gas and said that the only way that congress can authorize suits against statesis pursuant to the 14th amd (sec 5)

(1) did congress, in enacting the statute, show a clear intent to abrogate the state immunity?(2) congress must have acted pursuant to congress remedial powers under section 5 of the 14th amd

-there must be a congruence and proportionality between the injury to be prevented/remedied andthe means adopted to that end*congruence relates to whether congress has identified a pattern of constitutional violationsthrough its findings

>if heightened scrutiny applies(either becuz of the right (ie-voting) or class (ie-race) at issue)-will apply if there is disparate impact on a certain class

> the court is more likely to uphold the act(becuz it is easier for congress to show a pattern of violations)*states have less latitude becuz of the higher standard-easier for congress to argue that congress is acting within its power

> if a lower level of scrutiny is appropriate, it will effect whether congress candemonstrate a widespread pattern

-rationale basis applies if lower level of scrutiny-makes it harder for congress to show the widespread pattern

-states have more latitude to act in that area

*the level of scrutiny that applies is impacted by the type of discrimination andthe basic right at issue

ie- access to the courts is a very fundamental right so strict scrutiny*easy for congress to show pattern

*proportionality > has congress created a new substantive right? (which they cannot do)-are they overreaching?>congress can only recognize existing rights, cannot create new ones-is it likely to identify and counteract state laws that violate rights?

*treat congruence and proportionality as separate elements

> if a statute is not within congress remedial powers under 14th amd sec 5, then it cannot overridethe 11th amd state immunity

*rationale > 14th amd needs to be enforced so that individual rights are protected

Alden v Maine > congress cannot authorize states to be sued in their own states for monetary damages without the states consent-state sovereign immunity in their own state was an inherent right before the constitution; and nothing has changedthat since then

> the constitution will not strip the states of this immunity-this is a broad view interpretation

*when congress adopted the 11th amd it reversed the decision in Chisholm becuz the court had gotten it

wrong cuz states possess inherent SSI

*note that the dissent says that even if the state sovereign immunity existed before the constitution (was inherent);congress still should have the power to strip them of this immunity

> it is subject to the power of congress-this is a narrow view interpretation

*think that Chisholm was reversed becuz the decision was politically wrong-the 11th amd changes the scope of the constitution

*keep these interpretations in mind for the exam!> there is a fundamental disagreement as to the broad and narrow interpretations of the 11th amd pertaining to SSI


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Week 12

State Action

*state action refers to government action (not just actual states actions)

*Keep in mind that the constitution is not designed to regulate individual conduct; but there are situations when the conduct of an indvis so intertwined with the G that it becomes state action

the first 10 amds apply only to the federal G; but the FG has extended most of them to the states through the 14th amd

the 14th amd applies to the states; the 13th amd does not

13th Amendment

-abolished slavery; applies to private individuals; congress has the power to enforce this through appropriate legislation

14th Amendment-no person shall be deprived of due process or equal protection of the law-applies to states; grants power the congress to enforce by appropriate legislation

15th Amendment-no person shall be denied the right to vote based on race-congress has the power to enforce by appropriate legislation

42 USC 1983-creates a private cause of action in federal court for when a state actor violates an individuals constitutional rights when acting underthe color of state law

Civil Rights Acts of 1975-all persons shall have equal rights for full and equal enjoyment of accommodations, facilities, etc

*but keep in mind that the 14th amd does NOT allow congress to prohibit private discriminationBUT > the 14th amd prohibits state discrimination(includes state actors and individuals acting in connection with state)

Typical State Action Scenario

-an aggrieved party will believe that her constitutional rights have been violated by an alleged wrong-doer

-The question then becomes:>whether the alleged wrongdoers actions are sufficiently connected to the government to besubject to constitutional limitations

*these cases are tough, because you could argue that anything is state action

Policy considerations:

questions regarding indv freedom to act without constitutional limitation

notions of federalism (states have PP to regulate their citizens; each time state action is found; the court is imposing theirpower upon an area where the state may have already chosen to regulate)

2 Exceptions to the State Action Doctrine> instances when a private actor can be bound by the constitution

*keep in mind whether these really just come down to a kitchen sink balancing test.


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-is there a point where enforcement of indv rights outweighs an indvs freedom from constitutional restraint?>these analyses are typically fact specific; on exam the fact pattern would mirror one of the cases

*often these cases turn on the social views at the time

(1) Government Function exception-a private actor must comply with the C when performing a task that traditionally has been done by the G-are there acts which are inherently governmental in nature and thus a private actor performing them is bound by theconstitution

-the G cannot avoid the constitution by delegating tasks*if an exclusive government function, then very likely that the private actor will be held to G constitutional bounds

Government Functions: Not Government Functions:-elections -running a shopping mall-tax collection -getting a license from the G-police services -regulated monopoly-running a town -G regulations-operating a city park

*but keep in mind that just because an agency is subject to state/G regulation does not automatically mean that it is astate actor

-and having a monopoly is not determinative that it is state action*and just because an industry serves an important public function does not mean that it is automatically a state actor

-if a heavily regulated state granted monopoly is not a state action, then being granted a license orbeing subject to a lesser G regulation cannot make you a state actor!

*conferring a tangible benefit can be a state action

(2) Entanglement exception-there must be a close nexus between the state and the conduct of the private actor, which depends upon whether theG has commanded or encouraged the unconstitutional conduct OR acted in a symbiotic relationship with the G

*a private discriminatory covenant can be made by private individuals, and nothing can be done about itBUT > if the court upholds the covenant, it becomes encouragement and thus state conduct* But failure to act would not constitute state action

>difference between commanding something and acquiescence

Nexus/Encouragement/Symbiosis:-ct enforcement of private discrimination-allowing a law requires/or even permits discrimination

*what if a state law does not mandate discrimination, but simply permits it? Is it state action?> still state action that is not allowed under the constitution

Week 13

Moose Lodge

*it is not state discriminatory action if a private club not open to the public refuses to serve alcohol to blacks,just because they had been granted a state liquor license> does not constitute a symbiotic relationship

*in contrast to a restaurant in the middle of a public parking structure.>there, there was a symbiotic relationship

Exam

-if you see congress acting > triggers CC-if you see a state acting > triggers police power and DCC (*the state law is likely going to be valid)-if you see both acting > triggers pre-emption > supremacy clause OR DCC


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*the exam has a pre-emption question > CC (can congress do it) and DCC (can the state do it)*there are 2 DCC questions on the exam

Things to think about:*federalist > view on pre-emption of DCC:*anti-federalist > view on pre-emption of DCC:*purpose of the DCC*talk about the theories for all of the doctrines that we have covered (WHY they were created, why they work, etc)

-the broader implications

accepted - bruski for shagen con law i

Documents