Con Law Review 2

7/30/2019 Con Law Review 2

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What makes Constitution work for us?o Authoritative model hierarchy of delegated rights to be obeyed coming down

the legal system

Consent idea Implications on how we read constitution

Intentions of the writers of the constitution matterso Evolutionary custom/predictivemodel system of predictive signals shaping to

what we think as a group

Implications on how we read constitution Concerned more about how the community understands the

words

Public meaningo Illustrative constitution supports bigger idea than what is written

Describes examples of how power is exercised Used at common law from one case to the next

o Demonstrative Defines how power is exercised

SCOTUS decisionso Cooper v. Aaroncourts words interpreting the constitution as the supreme

law of the land, every other state must read the constitution in that way

Argument SCOTUS decisions only bind the parties to the case, andeveryone else can take a different view

o Dickerson Case (Miranda Case) Congress cannot supplant a different and less limiting requirement of

the constitution

Attorney General Meeses article about Cooper v. AaronSelf-imposed restraints on courts

Political questiono Courts will sometime defer to other branches in interpreting the constitution

Usually only when court would have come out the same way.o Most repeated when it should apply (Baker v. Carr)

Two factors Textually demonstrable that the decision is allocated power Lack of judicially discoverable and manager standards for

resolving an issue

o Caveats Republican form clause is a political question Judicial reluctance to tell government what they must do Better to tell them what they can do

o When judges have strong opinions about a case, and feel that other branchescannot adequately address them, courts will always take the case

Like in: Powell v. McCormack, Bush v. Gore


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o What concerns SC about RFC is not what court normally deals with, not abouthow it uses power, but what it must do (positive duty)

Advisory opinionso SC wont issue unless live case/controversy

Standingo Constitutionally required

Case or controversy P must show concrete injury Fairly traceable Likely to be addressed by a judicial decision

o Prudential Standing Requirements P cannot rely on rights of third parties P cannot assert a generalized grievances, which may be addressed

through other process (voting)

But when the other governmental process is malfunctioning(bad voting districts), court will step in

o If courts regulations would affect parties not in the case, why do we careabout standing?

o Tension b/w Cooper v. Aaron and Standing Requirements (WTF?) Mootness/Ripeness

o Court is not willing to find mootness when there is an important constitutionalquestion at state

o Mootness Whether a real dispute exists/ceased to exist Caveat: Ex. Roe v. Wade facts that evade review but proceeds review

oRipeness

Sometimes allows complaints to challenge a statute on its face, eventhough the statute hasnt been applied to them yet

When the existence of the statute will prohibit behavior Ex. First amendment and statutes chilling speech Enactment of statute or application of statute?


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External limits on judicial power

Constitutional amendmentso 16th Amend is an example (Income Tax)

Impeach judges Appointment process

o Senate is involved, very much influences what judges goes in Restricting the jurisdiction of the courts

o Case law allows congress to exclude subject-matters from the SCOTUSsjurisdiction

o Suspension clause/exceptions clause Boumeddiene Case

Bills of Rights

Some specific human rights are elevatedo Some rights come from heritage (Eng. Bill of rights/magna carta)o Some rights expressed were responses to government abuses

Examples of BoR adjudicationo Speech even though language in 1st amendment is explicitly unqualified, court

has found exceptions and allows congress to regulate speech when there are

other interests/competing human interests

Reputation/defamation law Court held less protection of reputation

o Public figure + public concern: P must prove defamation is false, and D

knew/reckless it was false (actual malice)

Court held more protection of reputationo Private figure + private concern:

(Closer to the common law) P must prove defamation; D must prove

defense (such as truth)

o Public figure + private concerno Private figure + public concern

Not left clear by cases (part of problem is whatcounts as public/private figure)

Related torts to try to get around restrictions on defamation (IIED) hasbeen treated as courts similarly to defamation

Incitement Tests (when should congress validly constrain incitement)


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o Hand Congress should prohibit speech that actuallytells people to break the law (Manasas Case)

o Holmes clear and present danger; speech that createsa serious risk of a serious evil (Schenk) see subsequent

dissents.

Frankfurter (Dennis) congress should decide,and court will be deferential

Holmes/Brandeis court should decide; Must be serious risk ofimmediate

serious evil

Brandenburg Test (Pulling elements from Hands and Holmes)o (Prevailing test) Before speech can be censored for

incitement

Actually tells people to break the law Must create a serious risk of an immediate

serious evil as the court interprets it

Judges are truly influenced by how much threat the speakeractually imposed

o In a context of shaky political system, a real concernthat the US system was under threat found incitement

and allowed censorship

o In a context of a crazy person was just saying crazythings, found no incitement and cannot censor

Compare: in Germany, Nazi stuff is real and speech advocatingNazi values might actually be successful

Treat not speech that makes others do harm, but speech thatthreatens harm onto others

o Cross burning not protected speech Fighting words/hate speech (C&P danger idea present here too)

Serious risk of serious evil + immediacy applies as well Court said language thats at risk of producing an

upsetting/angry reaction is not necessary in communicating

ideas

o But, it may be (especially for more important ideas) To protect certain races (Blacks, etc.) might be discrimination by

the government itself in its viewpoint

o Racism worse than Sexism?o Or, maybe a particular type of fighting words will be

more likely to cause harm

RAV v. Paul


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o Justice Scalia opinion assume placing objects countsas fighting words (you can ban all fighting words, but

not just a sub-set)

Disfavoring sub-sets, as opposed to big topic. You cant pick-out comments about race, but no

homophobia.

BUT other justices said city statute wasoverbroad. Catching more than fighting words.

CLAUS: best response to Scalia is thatgovt isnt cherry picking, but govt

trying to minimize by picking what

would cause worst reaction.

MitchellCase (hate crimes)o Govt can punish crimes with particular thoughts (hate

crime)

So if hate crimes can be punished, this suggeststhat RAVcan be decided differently.

VA v. Blacko Trying to create fear in someone.o Placing of burning cross (statute prohibited with

intention of intimidating someone).

Must intend to threaten, not just place it. Obscenity

Factors:o Average person applying contemporary standards (jury)o Appeals to prurient interests (91, 10:20)o Whether work lacks serious

artistic/literal/political/scientific value (court decides,

will take in opinions from experts)

Smith Pope Not local community standards for 3rd elements

(national standard)

Commercial Speech

Courts have been much slower to say that such speech isprotected

Virginia Pharmacy Board court struck down restrictions onpharmacists advertising

o Strong human interest in proceeding misleading anddeceptive advertising; courts may restrict

Economic motive gives strong interest


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State taxes that applies to other peopledealing with the fed

For state gov: absolute prohibition ondiscriminatory federal taxes, and a

prohibition on federal taxes that

impairs the states ability to function

(NY v. US) Frankfurter focused ondiscrimination, but no one else joined

him.

o Stones concurrence non-discriminatory might still limit

the state.

Regulation as distinct from taxation? (92, 2:20) National League of cities v. Usury established state immunity

from federal regulation

o Essential functions of state cannot be regulated by fed But, essentials functions test is unworkable, Political process test is how states get immunity from national

government

Garcia SC dropped state immunity (92, 3:50)o Rely on Political process

NY v. US (1992)OConnor established new limitation on fedregulation of state governments:

o Reestablished a nondiscrimination principle rather thanan essential functions test

o Established no commandeering principle No discrimination.

Reno v. Condono Who can sue government?

Congress may confer rights to sue in respect to enforcing the 14thamendment guarantee

Seminole Tribe v. Florida Language of 11thamend got invoked (but it doesnt cover it).

o Exceptions when right comes from14th amend. FED govt can ALWAYS sue state govt Ex-Parte Young allows people to sue state officials for injunctive reliefs State can always waive immunity.


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How powers are divided between fed/state

Commerce powero Post new-deal period: US may regulate things that are not interstate commerce

purpose if the thing that is being regulated

o Gibbons v. Ogden States internal economic activity should be regulated by the state Court cannot consider congresss purpose for regulating interstate

commerce

The effects of states internal activity on other states may be enough forfed to regulate that activity

History of commerce power regulation:o SugarTrusto Majority in Hammer can regulate, but must have must have proper

motive/proper (direct) effect

DISSENT: Holmes if regulating interstate commerce itself, do not careabout motive

o Shrevport Interstate Commerce + direct effect + purpose

o Post new deal can regulate things that are not interstate commerce if theyeffect interstate commerce, do not care about motive

Pendulum swung BEYOND Holmes. Congress can regulate things thatare NOT interstate commerce, just b/c it affects it. (Wickard v. Filburn)

Effects test of interstate commerce regulationo Court used commerce power to prohibit racism

Lopez will not allow court to aggregate things to create a substantial effect unless theyare economic in nature (Activity, not purpose)

o Use of channels of interstate commerce can be regulated (dont care aboutmotive/purpose)

o Can protect the instrumentality of interstate commerce, even if the threat isonly coming from intrastate activities

o Substantial effect on interstate commerce can regulate for the purpose ofgrowing the economy (economic nature); allows for aggregation (but is the idea

of economic nature coherent)

o Reheinquest Congress can regulate challenge Instrumentality Substantial affect (have to economic for aggregation)

Raicho SC said Congress must have ability to regulate activity nationwide for purpose to

ensure that it doesnt exist.

No interstate traffic could exist.


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o Sebellius (ObamaCare) Bright-line rule (more BL)

CP cannot be used to order people to engage in Commerce.

Preemption doctrine (TRACK 93)

Dormant Commerce Clause (?)o State government restricted (to some degree) in their own regulations of

interstate commerce

Federal commerce clause exclusive? Not clear 1) Restrict states regulation of commerce if it overtly

discriminates against other people

o State import-export duties are prohibited 2) Where state laws are protectionist in their purpose or effect

(even if does not discriminate on the face of the law), if it has adisparate impact, cannot regulate

o Ex. Implicit discrimination (ban water that does nothave X mineral that only X state has)

3) Sometimes, court says if the state regulation unduly burdensinterstate commerce, cannot regulate

How to come to this understanding? Illustrative reading of the constitution Because congress has this interstate commerce power,

situations where Congress does not regulate, shows Congresss

intent that that area of commerce should not be regulatedo Ex. Congress sets up an institution that could regulate

something, but does not. This means this area should

not be regulated

o When fed law preempts state law, does not make the whole state law invalid(ex. State K law against damages clauses and specific performance)

o If court feels that a fed law is meant to be comprehensive, state law does notapply, even if it is possible to apply both state and fed law

1) Is there a field that congress purports to regulate comprehensively? 2) Is the challenged state law within the comprehensive field of the

federal law?o This affects enforceability, not validity

State law still valid, just not enforceable in the field of congressionalcomprehensive regulation


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Taxing power/Spending power

Use of conditional federal spending can be used to achieve results similar to thecommerce power.

If a purpose was a tax was really to punish/regulate behavior, this could take the taxoutside of the taxing power (this thought was ditched after the new deal)

o BaileyCase example of this (UN-CON Penalty) ObamaCare talks about Baileylike relevant law, even though they call it

a tax when law itself calls it penalty. (MAKE SURE YOU HAVE READ IT)

(93, 5:45 min)

o Now, taxing is valid South Dakota v. Dole National government attempt to create national drinking age by

restricting highway funding is OKAY

o Court said there were some limits on the spending clause, but not applicable tothe case at hand

o(maybe needs) Relatedness between conditions on spending and the subject ofthe spending

Congress cannot conditionally spend on the condition the states violatethe constitution (explicitly violate provisions of the bill of rights)

Conditional spending as coercive? Hard to find Doesnt apply here, states dont have a right to federal money Claus: BS about how not real coercion

In effect, the spending power is very broad at the moment Common defense and general welfare is a constraint on what Congress can do, but

court said this is a political question

o Dole court treated common and general as non-justiciable questiono Signal a way FED must spend money uniformity of taxing/spendingo Dont want courts second guessing what counts as defense/welfare


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War powers

Expands and contracts depending on the condition of the world Effects tests

o Congress can regulate things that are not military matters because they have aneffect on how US can fight a war (steel industry)

o Congress can also regulate things if the war has had an effect on them (rentcontrol)

Court has to police this; pretext of being at war cannot be invoked by other branches Woods and Cloyds MillerRent Control Case

Treaty Power

Historically, about peace between nations to be nice to each nation Modern promises between other countries regarding how each nation will treat its

own citizenso Does this let Congress regulate in ways otherwise outside of congresss powers

for the purpose of implementing treaties?

o Missouri v. Hollandcourt said yes. A treaty itself is a supreme law of the land Treaty automatically becomes domestic law? Or need an implementing statute?

Involves the supermajority of the senate, once that happens, USis bound domestically and internationally

Holmes ip so facto if US can enter the treaty, it has the power toimplement the treaty

o Treaty power remains a way that fed power can be expanded (given the consentof the senate)

2/3 of Senate must agree. BUT change in way Senators elected.

o If treaties not self-executing, then does it presuppose other powers?


12/16

Separation of Powers

Not about efficiency. Origins enlightenment scholarship (Montiesque)

o Implemented in our constitution: All legislative powers to congress Effectively, This is achieved through power sharing rather than power separation

o Separation of powers exist to promote liberty, not efficiencyo Separation of powers exist for purposes other than liberty

Prevent others from determining reach of their own powers. President is very limited in situations where congress does not want him to act

o Justice Jacksonpresidents powers varies depending on its relation to whatthe Congress wants

President may have his power + Congresss (consent) Even when congress is against president (Non-consent), President can

still act within his own power

TWILIGHT ZONE: When congress is silent (ex. Important decisions mustbe made quickly), President must have some ability to act in pressing

circumstances

Steel seizure cases (present circumstances of a war, emergencyneed for steel);

o Even these circumstances were not enough forpresident to seize steel mills

o Dames and Moore v. Regan (Track 93, 14 min) President may have the power to do thingsjust because Congress has

allowed him to do so for a long time

SC will defer to Congresso Writ of habeas corpuscheck on Presidents power to detain people

Constitution explicitly limits Presidents power to detain people bylimiting the suspension of writ of habeas corpus only to certain situation

(in the background saying the writ of habeas corpus otherwise always

exists)

Non-Detention Act (1948) no one can be detained unless pursuant toact of Congress

And Congress wants to make it non-reviewableo Need Suspension Clause

Void between a foreign combatant/US citizens Hamdi US citizen taken abroad

o Justices split into different campso Pluralitygovt must present evidence (but not

necessarily normal standard hearsay rule)

o 4 other justices thought it was not enough (Souter,Ginsburg, et. al)must bring criminal proceedings.


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Non-Citizen Detainess Rassol Hamden v Rumsfield Boomerdien v. Bush

o US-CON conclusion statutes that tried to take awayjurisdiction from courts regarding HC were invalid to

extent they tried to do that.

o Suspension clause invoked as reason why right to hearcases from Gitmo detainees could not be taken away.

What kind of judicial review needs to be made available Justices split on these issues

Non-Delegation Doctrine

Inevitably, the executive makes a lot of law through admin. agencieso Scalia DISSENT UN-Con for Congress to give dedicated body job of rule-making.

Cannot create an executive body that does nothing but make law; lawmaking by

an executive body always has to be part of a process of mainly doing the

implementation of law from somewhere else

Majority thought this opinion doesnt mattero Majority inevitable in a modern society that the law will come from Congress

itself; congress will create broad laws and the applications will be from the

executive

o Mistretta Can a sentencing commission be fulfilled by judges?

Yes, judges can have other jobs as long as no conflict of interest If the extra job is not a fun job/that would buy favor from the

judges, then judges can do it

INS v Chadao Congress cannot micromanage executives enforcement of law that Congress

allocated to them (Congress is confined to its cumbersome statute-making role)

Clinton v. New Yorko Extent to which Congress can fetter itself Line item vetoo Congress cannot pass statutes that effect later statutes

Morrison v. Olson (94, 4 min) Scalia Dissent read it.o Can congress limit the presidents latitude on having a say in who gets to work

in the executive

Congress made Statutes attempting to say that a particular official isinsulated from the presidents hiring/firing power

President could be limited on a statute on the grounds in which heremoved members of the FCC:


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o There are some jobs in the executive where the president must have absolutediscretion to hire/fire (such as presidents staff)

o For the class of people in the executives whose jobs the president is himselfresponsible for, the president has absolute power over

o But president has less power where the president is not accountable for thatother person

Clinton v. Jones (94, 5:40 min)o Court has held that a president may be sued while he is a government

Civilyes, even though it might burden the presidents duties Criminal yes, president is not above the law (but he can always pardon

himself..)


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Takings Clause

Taking for public useo Very broadly interpreted; as long as there is some benefit to the community

(the actual transfer can be from private party to private party)

Kelo v. New London When isjust compensation needed?

o For the regulation not to require compensation: (Penn Central) Generality: The regulation is general

The person whose property is being taken enjoys the publicuse/benefit

Equivalent to taxation the person whose property is takenfrom enjoys that everyone else is subject to the same thing

Distinct investment-backed expectations Where people acquire a certain type of property for a certain

purpose, And the regulation guts that kind of purpose

o Ex. Regulation on sea-side property that disallowsresorts/hotel/restaurant requires compensation

because thats what people buy sea side property for

o Cost/benefit analysis (not absolute) If benefit outweighs the burden can regulate

Butjust because a regulation should happen, doesnt mean thatthe person taken from automatically should be compensated

o Are they being subjected to unique burden?o Some bright-line requirements:

(Acquisition) automatically must compensate (Loretto) if land is physically occupied, must have compensation (Lucas) if taking permanently deprives land ofall economic use, must

have compensation

Problemsome permanent regulations may be repealed;some temporary regulations may be renewed indefinitely

If not deprives property of all economic use: Apply Penn central test

K clause In case SC allows loan modification in existing statute

o Looked at purpose of statute, and following it now would de-stabilize system.o Built into it is that state can change it since they give it power.o DISSENT: READ it.

In emergency situations (including economic), language in the constitution thatexpressly says something cannot be done, the court held it can be done


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The court pays closer attention to the K clause when the K is between the state itselfo But private parties might include states (relatives/friends, etc)

Documents

Con Law Review 2